[Cite as State v. Emerick, 2011-Ohio-5543.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24215
v. : T.C. NO. 94CR1548
EDMUND E. EMERICK, III : (Criminal appeal from Common Pleas Court) Defendant-Appellant :
:
..........
OPINION
Rendered on the 28th day of October , 2011.
ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
MARK GODSEY, Atty. Reg. No. 0074484, Ohio Innocence Project, P. O. Box 210040, University of Cincinnati College of Law, Cincinnati, Ohio 45221 Attorney for Defendant-Appellant
FROELICH, J.
{¶ 1} Edmund E. Emerick appeals from a judgment of the Montgomery County
Court of Common Pleas, which denied his motion for further DNA testing. For the
following reasons, the trial court’s judgment will be affirmed in part, reversed in part, and 2
remanded for further proceedings.
I
{¶ 2} In 1996, Emerick was indicted for one count of aggravated robbery and two
counts of aggravated murder, with death penalty specifications, arising out of the killings of
Robert Knapke and Frank Ferraro during a robbery of the Sloopy’s bar in Dayton.
According to the coroner, Knapke and Ferraro died from blunt-force injuries to their heads,
consistent with blows from a hammer. The police discovered that a safe and a two-wheeled
dolly were missing from the bar, and that a cigarette vending machine in the bar had been
broken into.
{¶ 3} At trial, the State presented eyewitness testimony that Emerick had been
outside of Sloopy’s around 11:00 a.m. on March 19, 1994, the day the crimes were
committed. Other witnesses testified that Emerick, a former manager of another bar located
approximately one block from Sloopy’s, had previously been in the office area of Sloopy’s,
where the safe was located. The dolly and the safe were located near businesses that
Emerick frequented in another area of Dayton; a dolly was found behind a laundromat after
Emerick came to retrieve his laundry, and the safe was located near a nearby hardware store.
A handwritten letter about the crime, allegedly written by the perpetrator, was mailed to a
local television station approximately one week after the murders; an FBI handwriting expert
testified that it was “extremely likely” that the letter was prepared by Emerick. Two tool
mark examiners testified that tool marks found on the cigarette machine matched the tire
iron located in Emerick’s car. A man who had been in jail with Emerick after his arrest
testified that Emerick had stated that he wished that he had taken the murder weapon with 3
him and other incriminating statements.
{¶ 4} Numerous blood samples were collected from the men’s bathroom and the
middle/food preparation room at Sloopy’s, where Ferraro and Knapke were killed,
respectively. These items, in addition to a claw hammer, the tire iron, and carpet from
Emerick’s car, were tested for blood type (ABO) and PGM enzyme type. Blood was also
found on Emerick’s left shoe and jacket; these items were sent to an independent laboratory
for DNA testing. A former forensic scientist with the Miami Valley Regional Crime Lab
testified that no blood was found on the tire iron. Although the carpet had blood on it, the
species could not be determined. One blood sample from a wall showed a blood type of
AB, which differed from the victims, but the other blood evidence was consistent with
having come from the victims. There was no testimony regarding Emerick’s blood type.
The results of the DNA testing of Emerick’s clothing were inconclusive. No DNA evidence
linking Emerick to the murders of Knapke and Ferraro was presented at trial.
{¶ 5} The jury found Emerick guilty of all charges and specifications and
recommended life in prison. The trial court sentenced him accordingly. We affirmed
Emerick’s convictions on direct appeal. State v. Emerick (June 6, 1997), Montgomery App.
No. 15768 (“Emerick I”).
{¶ 6} On October 28, 2005, Emerick filed an application for post-conviction DNA
testing with the trial court, seeking to test: (1) the hammer; (2) fingernail clippings; (3) blood
tins; (4) screwdriver bits; (5) paper towels and cloth towels; (6) vials of blood; (7) carpet
from his automobile; (8) his clothing; and (9) hair samples. Emerick asserted that “DNA
testing could be conclusive proof of innocence, particularly if a match was made on different 4
items that was not the DNA profile of either victim (for example, a match between the
hammer & DNA collected from fingernail clippings). Further, DNA could prove who was
the real murderer. ***”
{¶ 7} In February 2006, the trial court overruled Emerick’s application for
post-conviction DNA testing. The trial court held that DNA testing was generally accepted
and available in 1996. Thus, Emerick’s application “fails under [R.C.] 2953.74(B)(1)
because all biological material that he wishes to test was available for testing at the time of
trial.” The trial court further noted that Emerick’s clothing had been tested and an
“inconclusive” test result had been obtained; it concluded, however, that any additional
DNA testing of that evidence would not be outcome determinative of a not-guilty finding at
trial.
{¶ 8} Emerick appealed the trial court’s denial of his application. He argued that
he should have been allowed to test the following items for DNA: (1) fingernail scrapings of
the victims, (2) swabs of blood taken from the bathroom wall in Sloopy’s, (3) genetic
material on the hammer and screwdriver bits used to murder Knapke and Ferraro, (4) blood
stains found on Emerick's jacket cuff and shoe, and (5) stains on the carpet of Emerick’s
motor vehicle. (These items represented many, but not all, of the evidentiary materials
included in Emerick’s application; for example, Emerick did not focus on the paper towels
on appeal.) Emerick claimed that if these items were to be tested for DNA, the results
would demonstrate the presence of a third unknown person at the crime scene. Emerick
further asserted that DNA testing of the genetic material would effectively demonstrate that
he was not present at the bar when the murders were committed, and thus, could not have 5
been the perpetrator of the crimes.
{¶ 9} On October 10, 2006, while his appeal of the trial court’s denial of DNA
testing was pending, Emerick filed a second application for DNA testing. In his second
application, Emerick requested DNA testing of the same biological material that was listed
in the first application, namely the “hammer; victims’ fingernail clippings; blood tins; vials
of blood; screw driver bits; paper and cloth towels; automobile carpet; clothing; [and] hair
samples.” His supporting memorandum argued that Short Tandem Repeat (“STR”) DNA
testing “is capable of excluding Emerick as the source of the biological materials and
establishing his innocence of the crime. If Mr. Emerick is in fact excluded through DNA
testing, the test results could be used to identify the true perpetrator of the crime.”
{¶ 10} On March 23, 2007, prior to the trial court’s ruling on Emerick’s second
application, we reversed the trial court’s February 2006 decision. State v. Emerick, 170
Ohio App.3d 647, 2007-Ohio-1334 (“Emerick II”). We noted that Y-Chromosome Short
Tandem Repeat (“Y-STR”) DNA Analysis was not available at the time of Emerick’s trial
and that the development of Y-STR technology was partially responsible for the General
Assembly’s decision to enact R.C. 2953.71 through 2953.83, so that otherwise qualified
inmates would have the opportunity to take advantage of advances in technology that were
not available at the time of their trials. We stated that “Emerick’s case falls squarely under
that category.” Id. at ¶18.
{¶ 11} We further held that the DNA testing would be outcome determinative,
reasoning:
{¶ 12} “The state’s theory at trial was that the offenses which took place at Sloopy’s 6
on the day in question were committed by a single perpetrator. There was no DNA
evidence that placed Emerick at the scene of the crime, and he maintained his innocence
throughout the trial. He contends that DNA testing of the fingernail scrapings of the
victims, the swabs of blood on the bathroom walls, and the genetic material on the murder
weapons will demonstrate the existence of a third party at the crime scene whose DNA does
not match Emerick’s or that of the two victims. Emerick argues that if the genetic material
does not match his DNA or that of the victims, then the isolated DNA must belong to
another donor. If the unidentified donor’s DNA is located on different evidentiary items,
that individual would be the actual murderer. Under this scenario, DNA analysis of the
requested evidentiary items would clearly be outcome determinative with respect to the
question of Emerick’s guilt. The existence of a third party who committed the murders and
robbery would exonerate Emerick. Thus, pursuant to R.C. 2953.74(B)(2), Emerick is
entitled to Y-STR DNA analysis of the identified evidentiary items.” Id. at ¶25.
{¶ 13} In October 2007, the prosecutor filed a report, pursuant to R.C. 2953.75,
which identified the following biological materials as still existing: (1) screwdriver bit
recovered from in front of a cigarette machine; (2) fingernail clippings; (3) stain from the
bathroom wall; (4) sample from the hammer; (5) sample from the jacket cuff; (6) sample
from the shoe; and (7) sample from the carpet. The screwdriver bit and fingernail clippings
were retained in the court’s property room. The other items were retained by the Miami
Valley Regional Crime Lab. The report did not mention biological materials other than
those ordered to be tested in Emerick II, and it is unclear whether the prosecutor looked for
any additional biological evidence, as required by R.C. 2953.75. 7
{¶ 14} Pursuant to our judgment, the items addressed in our opinion (and itemized
by the prosecutor in the Prosecutor’s Report) were sent to an independent laboratory for
Y-STR DNA testing. Emerick and Ferraro’s DNA was excluded from the fingernail
clippings, wall sample, and hammer handle; Knapke’s DNA could not be excluded as the
source of the blood for those samples. Emerick’s DNA was excluded from the hammer
whereas both Ferraro’s and Knapke’s DNA could not be excluded. Ferraro and Knapke
were excluded as the source of the blood on Emerick’s jacket; Emerick was not excluded as
the source of that blood. Emerick, Ferraro, and Knapke were excluded as sources of the
DNA on Emerick’s shoe. No male DNA was located on the screwdriver tip, and no human
DNA was found on the automobile carpet. Emerick has acknowledged that “[t]esting thus
far has failed to yield definitive evidence of Defendant’s innocence or guilt.” (Doc. #15.)
{¶ 15} On March 13, 2009, Emerick filed a motion for further DNA testing and to
compel the prosecutor to provide a report listing all biological material collected in the case.
He argued that “DNA testing of the remaining items would likely turn up additional profile
that would exculpate Emerick in this case.” In particular, Emerick sought testing of the
so-called “devil letter,” which was purportedly sent from the killer to the media shortly
after the murders/robbery, as well as paper towels found in both the men’s and ladies’
restrooms and a Budweiser beer bottle found inside the walk-in cooler in the middle room of
the bar. Emerick stated that there were more than 20 additional items that had never been
tested for DNA, such as (1) blood taken from the cooler in the middle room; (2) blood taken
from the men’s room sink; and (3) blood taken from the wall of the men’s room near the
toilet paper dispenser. Emerick also sought an order to require the State to inventory all 8
biological material, which the State allegedly had never done.
{¶ 16} The State opposed Emerick’s motion for additional testing. The State argued
that Emerick had “not even attempted to demonstrate the reasonableness of testing every
single item of evidence, and [had] not specifically identified what items’ test results could
exculpate him.” (Emphasis in original.) (Doc. #19.) The State further argued that results
excluding Emerick as a contributor of biological material on the additional items would not
exonerate him.
{¶ 17} A hearing on Emerick’s motion was held in July 2009, and the parties
submitted post-hearing memoranda. For the most part, the parties repeated their previously
asserted arguments. In his post-hearing memorandum, Emerick also asserted that the law of
the case doctrine governed this matter. He claimed that the appellate court (this court) had
previously concluded that DNA testing would be outcome determinative and that the trial
court was bound to follow that holding. The State responded that the law of the case
doctrine did not apply, because Emerick’s motion for further testing concerned different
biological evidence.
{¶ 18} The trial court denied Emerick’s motion for further post-conviction DNA
testing. The court rejected Emerick’s contention that the law of the case doctrine applied.
The court noted that it had already followed the mandate in Emerick II, and that the appellate
opinion and judgment were confined to eight pieces of evidence. The court further found
that Emerick had made the strategic decision not to test additional items at the time of trial,
when DNA testing was generally available. Further, the court found that additional testing
would not be outcome determinative. The trial court stated, in part: 9
{¶ 19} “Defendant’s theory that DNA testing could produce an outcome
determinative result is problematic because it only can prove to be true IF the evidence at
trial is found not to be credible AND the DNA testing of the ‘devil letter’ reveals an
additional profile AND that profile happens to be found on any of the other evidence tested
AND all the other profiles found on all other evidence exclude Defendant. At best, finding
a new DNA profile would simply attack the credibility of evidence presented rather than
produce an outcome determinative result. The Court reminds Defendant that the murders
took place in the hours following two very busy nights at the bar. Finding DNA from
another person on paper towels or beer bottles in a bar, or even the walls of a public bar,
would not definitively exclude Defendant as the murderer. Further, with respect to the
‘devil letter,’ a DNA profile of someone other than Defendant could simply mean that
Defendant wrote the letter, but someone else handled it and sealed the envelope. As set
forth above, it was testified to at trial that the purpose of the ‘devil letter’ was to divert
attention from the true killer. Thus, even another’s DNA on the letter would not be
‘outcome determinative.’” (Emphasis in original.)
{¶ 20} As for Emerick’s request for a list of biological materials, the court found that
Emerick had previously been provided the list that he had requested under R.C. 2953.73.
The court noted that Emerick’s counsel had been given access to all evidence held in the
court’s property room, and trial counsel had been given access to a list of all available
evidence through the open discovery provisions of the Court Management Plan. Citing
State v. Buehler, 113 Ohio St.3d 114, 2007-Ohio-1246, the court held that the State need not
produce the list because DNA would not produce an outcome determinative result. The 10
court denied Emerick’s request for a list of all biological evidence collected at the crime
scene and from the victims.
{¶ 21} Emerick appeals from the trial court’s judgment, raising three assignments of
error.
II
{¶ 22} As recognized by the Supreme Court, “[s]ince 1998, DNA testing has
advanced so far that ‘a DNA profile may now be developed from items which were
previously unsuccessfully typed or potentially not attempted due to the compromised or
limited nature of the sample,’ according to one of the expert witnesses. The PCR DNA
testing used in this case in 1998 has been largely replaced by two newer technologies – short
tandem repeat (or STR) testing and Y-chromosome STR (or Y-STR) testing.” State v.
Prade, 126 Ohio St. 3d 27, 31, 2010-Ohio-1842, ¶20.
{¶ 23} Prompted by advances in DNA testing, in 2003, the Ohio legislature enacted
Sub.S.B. 11, which established “a mechanism and procedures for the DNA testing of certain
inmates serving a prison term for a felony or under a sentence of death.” See former R.C.
2953.71 to 2953.83. This statutory scheme was amended in 2004 and 2006, and again in
2010. The case before us requires us to interpret the post-conviction DNA testing statutes,
as amended in 2006.
{¶ 24} The trial court “has discretion on a case-by-case basis” to accept or reject an
eligible inmate’s application for DNA testing. R.C. 2953.74(A). We therefore review the
trial court’s denial of Emerick’s motion for further DNA testing for an abuse of discretion.
An abuse of discretion implies an arbitrary, unreasonable, unconscionable attitude on the 11
part of the trial court. State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶130. Abuse
of discretion usually involves decisions that are unreasonable rather than arbitrary or
unconscionable. AAAA Enterprises, Inc. v. River Place Community Urban Redevelopment
Corp., 50 Ohio St.3d 157, 601. In this regard, unreasonable includes a discretionary
decision that is unsupported by the evidence. See, e.g., State v. Boles, 187 Ohio App.3d
345, 2010-Ohio-278, ¶18, quoting Black’s Law Dictionary (8th Ed.2004) 11.
III
{¶ 25} As a threshold matter, the State asserts that Emerick’s request for further
DNA testing is barred by res judicata, because he could have sought testing of the additional
items in his first application for DNA testing. The State notes that the Eighth District in
State v. Ayers, 185 Ohio App.3d 168, 2009-Ohio-6096, found that res judicata does not
apply in the context of post-conviction DNA testing, but the State asserts that Ayers is
distinguishable from the facts before us.
{¶ 26} “The doctrine of res judicata encompasses the two related concepts of claim
preclusion, also known as *** estoppel by judgment, and issue preclusion, also known as
collateral estoppel.” Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379, 381. “Under the
doctrine of res judicata, ‘[a] valid, final judgment rendered upon the merits bars all
subsequent actions based upon any claim arising out of the transaction or occurrence that
was the subject matter of the previous action.’” Kelm v. Kelm, 92 Ohio St.3d 223, 227,
2001-Ohio-168, quoting Grava, supra, at syllabus. Furthermore, “[r]es judicata operates to
bar litigation of ‘all claims which were or might have been litigated in a first lawsuit.’”
Grava, 73 Ohio St.3d at 382, quoting Natl. Amusements, Inc. v. Springdale (1990), 53 Ohio 12
St.3d 60, 62 (emphasis omitted).
{¶ 27} In Ayers, the defendant was convicted of aggravated murder, aggravated
robbery, and aggravated burglary of a woman who lived in his apartment building. Prior to
trial, investigators determined that a pubic hair found in the victim’s mouth did not belong to
Ayers and that no biological material was found under the victim’s fingernails. Four years
after his conviction, Ayers sought DNA testing of the pubic hair, blood, and skin from
underneath the victim’s fingernail. The trial court denied the application, stating that it had
already been determined that the blood and pubic hair could not be linked to Ayers and that
no biological material was found under the victim’s fingernails. Ayers subsequently filed a
second application for DNA testing, seeking the testing of the same evidence. Ayers noted
the advances in DNA testing and emphasized that the statutory definition of “outcome
determinative” had changed since his first application. The trial court denied the
application as barred by res judicata and because the results would not be outcome
determinative. Ayers appealed the trial court’s decision, arguing, in part, that res judicata
did not apply because the denial of his first application was based on a different, less lenient
standard for “outcome determinative.”
{¶ 28} The Eighth District reversed the trial court’s ruling. It held that, “[b]ecause
Ayers’s first application was considered and rejected under the earlier, more restrictive
statute, we find that principles of res judicata are inapplicable to preclude consideration of
this petition.” Ayers at ¶26. The Court emphasized that the “ultimate objective” of our
system of criminal law is that “the guilty be convicted and the innocent go free.” Id. at ¶24,
quoting Herring v. New York (1975), 422 U.S. 853, 862, 95 S.Ct. 2550, 45 L.Ed.2d 593. 13
The Eighth District found that the Ohio legislature had “plainly embraced this notion” by
lowering the outcome determinative standard. The appellate court thus concluded:
{¶ 29} “Nothing that we have said is meant to suggest that convicted defendants are
entitled to additional DNA testing based on nothing more than the passage of time and the
assumption that science has developed more refined testing methods. We have made it
clear that the courts must consider such motions on a case-by-case basis and those motions
must make a threshold showing that DNA testing could be outcome determinative. If that
showing is made, res judicata will not bar testing even though an earlier application for DNA
testing was denied. “
{¶ 30} We likewise reject the State’s contention that res judicata applies. As stated
in Ayers:
{¶ 31} “If DNA testing has the proven ability to ‘exonerate[ ] wrongly convicted
people,’ we can perceive no viable argument that matters of judicial economy should
supersede the law’s never-ending quest to ensure that no innocent person be convicted. The
refinement of DNA testing has shown that law and science are intersecting with increasing
regularity. When scientific advances give the courts the tools to ensure that the innocent
can go free, those advances in science will necessarily dictate changes in the law.” Id. at
¶24 (citation omitted).
{¶ 32} Significantly, R.C. 2953.74 permits successive applications for DNA testing
by addressing circumstances when DNA testing may be ordered, even though the same
biological material has already been tested. In addition to changing the definition of
“outcome determinative,” the 2006 changes to the post-conviction DNA testing statute 14
increase the number of eligible applicants, facilitate the granting of applications for DNA
testing, and allow unidentified DNA to be entered in the Combined DNA Index System
(CODIS) for matching with known felons. These changes support a conclusion that this
court should permit successive applications for DNA testing, even when the biological
materials addressed in the successive application could have been raised in a prior
application, provided that all the statutory criteria are met.
{¶ 33} Emerick’s request for further DNA testing is not barred by res judicata.
IV
{¶ 34} Emerick’s first assignment of error states:
{¶ 35} “The Trial Court Erred When It Found that Ohio Rev. Code 2953.74(B) Was
A Bar to DNA Testing, in Direct Contradiction of This Court’s Previous Ruling in State v.
Emerick, 170 Ohio App.3d 647, 2007-Ohio-1334, appeal denied, 114 Ohio St.3d 1511,
2007-Ohio-4285.”
{¶ 36} In his first assignment of error, Emerick asserts that the trial court erred in
concluding that R.C. 2953.74(B) was a bar to additional post-conviction DNA testing,
because DNA testing was generally available at the time of Emerick’s trial. Emerick
contends that the trial court’s finding was contrary to our conclusions in Emerick II.
{¶ 37} The State agrees with Emerick that the trial court’s denial of further testing
based on the fact that DNA testing was generally accepted, admissible, and available at the
time of Emerick’s trial “goes against this Court’s decision in Emerick’s appeal of the trial
court’s denial of his first application for post-conviction DNA testing.” Nevertheless, the
State asserts that the trial court correctly concluded that additional DNA testing was 15
precluded under R.C. 2953.74(B)(1). It asserts that res judicata barred Emerick’s
successive application for DNA testing where Emerick was aware of the evidence and could
have sought its testing in his prior application; we have already rejected, supra, the State’s
res judicata argument.
{¶ 38} R.C. 2953.74(B)(1), as it existed when Emerick’s motion for further DNA
testing was filed in 2009,1 provided:
{¶ 39} “(B) If an eligible inmate submits an application for DNA testing under
section 2953.73 of the Revised Code, the court may accept the application only if one of the
following applies:
{¶ 40} “(1) The inmate did not have a DNA test taken at the trial stage in the case in
which the inmate was convicted of the offense for which the inmate is an eligible inmate and
is requesting the DNA testing regarding the same biological evidence that the inmate seeks
to have tested, the inmate shows that DNA exclusion when analyzed in the context of and
upon consideration of all available admissible evidence related to the subject inmate’s case
as described in division (D) of this section would have been outcome determinative at that
trial stage in that case, and, at the time of the trial stage in that case, DNA testing was not
generally accepted, the results of DNA testing were not generally admissible in evidence, or
DNA testing was not yet available.”
{¶ 41} As stated above, the trial court held that no criterion was satisfied, finding
that “DNA testing was generally available, accepted, and admissible” as demonstrated by
the fact that some DNA testing was conducted in his case and entered into evidence at trial.
1 The DNA testing statutes, including R.C. 2953.74, were revised in Sub.S.B. 77, effective July 6, 16
The court believed that Emerick was seeking “to reverse the apparent strategic decision he
made at the time of his trial not to have DNA testing performed on the items now requested
for testing.”
{¶ 42} The trial court’s decision on this issue is directly contrary to Emerick II. In
that case, we stated:
{¶ 43} “Emerick contends that the available technology in DNA testing in 1996 was
insufficient to reach the definitive results now possible using Y-Chromosome Short Tandem
Repeat (‘Y-STR’) DNA Analysis. It is undisputed that Y-STR analysis was not available at
the time of Emerick's trial. Moreover, it was partially the development of Y-STR
technology that prompted the General Assembly to enact R.C. 2953.71 through 2953.83 in
order to allow otherwise qualified inmates the opportunity to take advantage of advances in
technology that were not available at the time of their trials. Emerick’s case falls squarely
under that category. While it is true that DNA testing was an accepted practice at the time
of his trial, the technology has advanced to such a degree that Emerick is entitled to
additional testing using the new technique. Because Y-STR DNA analysis was not
available at the time of his prosecution, the biological materials Emerick seeks to be tested
are eligible for analysis pursuant to R.C. 2953.74(B)(1).” Emerick II at ¶18.
{¶ 44} Although the items that Emerick seeks to test in this appeal differ from those
addressed in Emerick II, our conclusions regarding the availability of DNA testing at the
time of Emerick’s trial have not changed.
{¶ 45} Emerick’s first assignment of error is sustained.
2010. The 2010 version of R.C. 2953.74(B)(1) replaces “inmate” with “offender.” 17
V
{¶ 46} Emerick’s second assignment of error states:
{¶ 47} “The Trial Court Erred in Focusing on the Likelihood that DNA Testing
Would Produce Outcome Determinative Results, Rather than Focusing on the Outcome
Determinative Standard.”
{¶ 48} In his second assignment of error, Emerick claims that the trial court
misapplied the outcome determinative standard. He emphasizes that the outcome
determinative standard had changed since the trial court’s decision on his first application
for DNA testing.
{¶ 49} In 2003, “outcome determinative” was defined in the post-conviction DNA
testing statutes to mean: “[H]ad the results of DNA testing been presented at the trial of the
subject inmate requesting DNA testing and been found relevant and admissible with respect
to the felony offense for which the inmate is an eligible inmate and is requesting the DNA
testing * * *, no reasonable factfinder would have found the inmate guilty of that offense
***.” (Emphasis added.) Former R.C. 2953.71(L). This definition applied when Emerick
first sought post-conviction DNA testing and when we rendered Emerick II.
{¶ 50} With 2006 S.B. 262, effective July 11, 2006, the Ohio legislature modified
the definition of “outcome determinative.” When Emerick filed his second application for
DNA testing, R.C. 2953.71 provided that “outcome determinative” means that “had the
results of DNA testing of the subject inmate been presented at the trial of the subject inmate
requesting DNA testing and been found relevant and admissible with respect to the felony
offense for which the inmate is an eligible inmate and is requesting the DNA testing or for 18
which the inmate is requesting the DNA testing under section 2953.82 of the Revised Code,
and had those results been analyzed in the context of and upon consideration of all available
admissible evidence related to the inmate’s case as described in division (D) of section
2953.74 of the Revised Code, there is a strong probability that no reasonable factfinder
would have found the inmate guilty of that offense ***.” (Emphasis added.) R.C.
2953.71(L).
{¶ 51} Under the 2006 changes, a defendant can now satisfy the “outcome
determinative” test by showing that a “strong probability” exists that no reasonable
factfinder would have found him guilty; he need no longer establish that “no reasonable
factfinder would have found the inmate guilty of that offense,” as required by the prior
version of R.C. 2953.71(L). Thus, the 2006 changes establish “a lower standard for
determining whether a reasonable fact-finder would have found guilt.” Ayers at ¶34. The
2006 version of the statute also requires the DNA test results to be considered in the context
of all the available, admissible evidence, thus making clear that “an exclusion result is not
the only fact to consider when deciding whether DNA testing will be outcome
determinative.” Id.
{¶ 52} Emerick argues that we previously found that the outcome determinative test
had been satisfied (under the more strict 2003 standard) when “an unidentified donor’s DNA
is located on different evidentiary items.” Emerick II at ¶25. Emerick thus asserts that we
must reach the same result under the current outcome determinative test. The State
responds that, even if Emerick were excluded as the source of DNA on the items he seeks to
test, the outcome of Emerick’s trial would not have been different when viewed in light of 19
the totality of the evidence offered at trial. The State further responds that several items
sought to be tested are not “biological material” as contemplated by R.C. 2953.74(C)(1).
{¶ 53} We find no meaningful distinction between the items tested in Emerick II and
Emerick’s current request to test various additional blood samples from the men’s bathroom,
paper towels found near one of the victims, paper towels found on the countertop and sink of
the ladies’ room, and the devil letter. The items addressed in Emerick II were directly
related to the commission of the murders and robbery, and were not items generally found at
the bar. (As detailed above, Emerick II concerned fingernail scrapings of the victims, swabs
of blood on the bathroom walls, and genetic material on the murder weapons, which were
gathered at the crime scene.) An unidentified person’s DNA on any of these categories
would have linked an unknown person to the crimes. Likewise, the presence of an
unidentified donor’s DNA in the newly-requested blood samples and/or paper towels taken
from the scene and on the envelope of the devil letter, which was allegedly written by the
perpetrator, would create a strong probability that no reasonable jury would have found him
guilty.2 See, also, State v. Reynolds, 186 Ohio App.3d 1, 2009-Ohio-5532, an aggravated
robbery and felonious assault case, in which we held that the absence of the defendant’s
DNA and the simultaneous presence of a known felon’s DNA from CODIS would create a
strong probability of a different outcome. Id. at ¶21.
{¶ 54} In reaching this conclusion, we recognize the substantial amount of evidence
2 We are cognizant that the robbery and murders occurred at a public drinking establishment where numerous people might have touched the paper towels, and that the mere presence of paper towels in the restrooms is not significant, absent some indication that they were related to the offenses. In this case, the evidence showed that the bar had been substantially cleaned and that the perpetrator had entered both bathrooms. We emphasize that unknown DNA on the paper towels would be significant only if the same unknown DNA were found on other evidence related to the crime. 20
offered by the State against Emerick. However, if DNA testing revealed that an unknown
person’s DNA were on the devil letter and at the crime scene, the State’s theory of the case
would be undermined. The State presented no evidence that the crimes at Sloopy’s were
committed by more than one person. To the contrary, the State argued at trial that the
contents of the devil letter, which referred to several perpetrators, was “[t]rying to blame it
[the crime] on other individuals.” In addition, defense counsel vigorously cross-examined
each of the State’s witnesses and presented evidence on Emerick’s behalf; the credibility of
the State’s evidence did not go unchallenged. In short, when considering all the available,
admissible evidence, the absence of the defendant’s DNA and the simultaneous presence of
another’s DNA on the devil letter and at the crime scene would create a strong probability of
a different outcome.
{¶ 55} The State argues that Emerick is not entitled to testing of the devil letter or its
envelope, because they were not collected from “the crime scene or the victim,” as required
by R.C. 2953.74(C)(1). It is undisputed that the devil letter was not collected from Sloopy’s
or from the victims. Indeed, the letter was sent to the media several days after the offenses
were committed. Nevertheless, we view the sending of the letter as an extension of the
crime by the perpetrator, as apparently did the State since it offered the envelope and letter
as evidence regarding the crime at trial and presented the testimony of a handwriting expert
to tie Emerick to that correspondence. We conclude that the letter and its envelope are
appropriate for testing under the post-conviction DNA testing statutes.
{¶ 56} We likewise reject the State’s assertion that the devil letter and other
evidence do not fall under the post-conviction DNA testing statute because they are not 21
“biological material.” Under R.C. 2953.71(A), an application for DNA testing means “a
request through postconviction relief for the state to do DNA testing on biological material
***.” Biological material is defined as “any product of a human body containing DNA.”
R.C. 2953.71(B).
{¶ 57} It is undisputable that biological materials are commonly located on other
items, such as clothing, bedding, or carpet. Those other items are routinely collected by the
police so that suspected biological materials on those items may be tested. And, as
discussed by Cindy Duerr in her testimony at Emerick’s trial, forensic scientists first
determine whether the collected items do, in fact, contain biological materials. We see no
reason why the devil letter and paper towels, which may contain biological materials, should
be treated any differently than other items with possible biological materials that were
collected by the police.
{¶ 58} We do not find Emerick II to be dispositive of the outcome determinative
issue on other items now requested to be tested. In particular, Emerick seeks to test a beer
bottle found near Knapke’s body. The beer bottle was partially full and had Knapke’s
fingerprint on it; a toxicology test of Knapke’s blood showed that he had drunk a small
amount of alcohol. Emerick has offered no explanation how the beer bottle is related to the
offense, other than speculation that the perpetrator may have touched it. The trial court did
not err in denying Emerick’s request to have DNA testing performed on the beer bottle.3
3 At the July 9, 2010 hearing, counsel for Emerick informed the trial court that the Innocence Project would pay for any additional DNA testing that was permitted by the court. R.C. 2953.71 specifically states that an “application” under the postconviction DNA statute means a request “for the state to do DNA testing on biological material.” A request to permit the defendant to conduct post-conviction DNA testing funded by a private source would not fall under R.C. 2953.71. Such a request is permitted by R.C. 2953.84, which was enacted in Senate Bill 262. That statute 22
{¶ 59} Judge Learned Hand once famously observed that “[o]ur procedure has been
always haunted by the ghost of the innocent man.” United States v. Garsson (S.D.N.Y
1923), 291 F. 646, 649. But he then concluded that “[i]t is an unreal dream.” Id.
Unfortunately, more recent cases – particularly those involving DNA exoneration even with
eyewitness testimony – have brought this ghost back to the justice system’s consciousness.
A jury found Emerick guilty, and we appreciate the frustration and even anguish that the
apparent lack of finality engenders in law enforcement and, especially, the victims’ families.
However, we believe the legislature and the courts, while perhaps in most cases not able to
be 100% certain of guilt or innocence, have established procedures to be followed regarding
biological evidence to approach the “ultimate objective” that “the guilty be convicted and the
innocent go free.” Herring, supra.
{¶ 60} The second assignment of error is sustained in part and overruled in part.
VI
{¶ 61} Emerick’s third assignment of error states:
{¶ 62} “The Trial Court erred in Ruling That the State is Not Required to Provide a
Report on All Biological Materials in Defendant’s Case, in Direct Opposition to the Clear
provides: “The provisions of sections 2953.71 to 2953.82 of the Revised Code by which an inmate may obtain postconviction DNA testing are not the exclusive means by which an inmate may obtain postconviction DNA testing, and the provisions of those sections do not limit or affect any other means by which an inmate may obtain postconviction DNA testing.” Provided that a sufficient parent sample is available and the chain of custody is maintained, we see no reason why a trial court would decline a request for post-conviction DNA testing by the defendant when conducted at the defendant’s own or another private entity’s expense. We emphasize that any request for DNA testing outside of the provisions of R.C. 2953.71 to 2953.82 would not require the State to provide a list of all existing biological materials, as required by those sections. Although the Innocence Project expressed its intent to pay for additional DNA testing, Emerick has consistently asserted that he is entitled to DNA testing under the statutory criteria, not R.C. 2953.84. The trial court did not err in focusing on the statutory requirements for additional DNA testing. See State v. Constant, Lake App. No. 2008-L-100, 2009-Ohio-3936. 23
Language of O.R.C. 2953.75.”
{¶ 63} Under R.C. 2953.75, the trial court must require the prosecutor “to use
reasonable diligence to determine whether biological material was collected from the crime
scene or victim of the offense *** and whether the parent sample of that biological material
still exists at that point in time.” In making these determinations, the prosecuting attorney
must “rely upon all relevant sources,” including, among others, all prosecuting authorities in
the case, all law enforcement authorities involved in the investigation, and all crime
laboratories involved at the any time with the biological materials in question. R.C.
2953.75(A). Thereafter, the prosecutor must prepare a report with his or her
determinations. R.C. 2953.75(B). A copy of the report must be filed with the court and
provided to the defendant and the attorney general. Id.
{¶ 64} The trial court is not required to first order the prosecuting attorney to prepare
and file the DNA-evidence report upon the filing of an application for DNA testing by an
eligible inmate. State v. Buehler, 113 Ohio St.3d 114, 2007-Ohio-1246. Rather, the trial
court may, in its discretion based upon the facts and circumstances presented in the case,
first determine whether the eligible inmate has demonstrated that the DNA testing would be
outcome-determinative. Id.
{¶ 65} In this case, we have concluded that DNA test results implicating a third party
as the source of blood in the bathrooms, biological material on paper towels from the
bathrooms and biological material on the devil letter and its envelope would be
outcome-determinative. Accordingly, the trial court erred in failing to order the prosecutor
to prepare a DNA-evidence report, as required by R.C. 2953.75. 24
{¶ 66} The third assignment of error is sustained.
VII
{¶ 67} The trial court judgment will be affirmed in part, reversed in part, and
GRADY, P.J. and FAIN, J., concur.
Copies mailed to:
Andrew T. French Mark Godsey Hon. Barbara P. Gorman