[Cite as State v. McFeeture, 2020-Ohio-801.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 108434 v. :
HOLLY McFEETURE, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: March 5, 2020
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-12-564265-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Katherine Mullin and Anthony Thomas Miranda, Assistant Prosecuting Attorneys, for appellee.
Mark A. Stanton, Cuyahoga County Public Defender, and Erika B. Cunliffe, Assistant Public Defender, for appellant.
SEAN C. GALLAGHER, P.J.:
Appellant Holly McFeeture appeals the decision of the trial court that
denied her petition for postconviction relief. Upon review, we affirm the trial court’s
decision. Background
In 2013, a jury found appellant guilty of aggravated murder and
contaminating a substance for human consumption. The convictions arose from the
2006 death of the victim, who was her fiancé. The state’s theory was that appellant
poisoned the victim by putting antifreeze in his iced tea. The defense claimed that
the victim committed suicide.
Prior to sentencing, appellant filed a motion for a new trial in which
she claimed the state’s failure to disclose impeachment material against one of the
state’s witnesses, Jamison Kennedy, who had been an informant in another murder
case, was in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d
215 (1963). Kennedy testified during appellant’s trial that he and appellant dated
for a time, and that appellant had confessed to him that she put something in the
victim’s drinks, he got sick, and died. After their relationship soured, there was an
incident where appellant called the police on Kennedy, and Kennedy subsequently
was charged and convicted for assaulting the officers and was sentenced to prison.
The trial court denied appellant’s motion for a new trial. Appellant
was sentenced to life in prison with parole eligibility after serving 30 years.
On direct appeal, appellant’s conviction was affirmed. State v.
McFeeture, 2015-Ohio-1814, 36 N.E.3d 689 (8th Dist.). In discussing the motion
for a new trial, the court did not agree that Kennedy’s testimony was the “centerpiece
of the state’s case”; rather, it found that “the key witness in this case was the medical
examiner” who “performed the autopsy and provided extensive testimony regarding his findings showing [the victim] died of chronic intoxication of a chemical found in
antifreeze, which ruled out suicide.” (Emphasis sic.) Id. at ¶ 126. The court also
recognized that Kennedy’s credibility had been “very aggressively attacked” at trial,
and determined “the undisclosed evidence would only furnish an additional basis to
challenge his credibility, and therefore, it would be considered cumulative, not
material.” Id. at ¶ 127. The court further concluded that “this undisclosed
information is not so material for Brady purposes as to give rise to a reasonable
probability that the outcome of the jury trial would have been different if the
information had been disclosed to the defense prior to trial.” Id. at ¶ 129.
On April 25, 2014, appellant filed a petition for postconviction relief.1
Among other challenges, appellant claimed that “[t]he State failed to disclose
evidence regarding Kennedy.” Specifically, appellant argued that she was denied
her constitutional rights to due process and a fair trial “because the State failed to
comply with its affirmative disclosure obligations” pursuant to Brady, 373 U.S. 83,
83 S.Ct. 1194, 10 L.Ed.2d 215. Appellant claimed that “there is newly discovered
evidence that Kennedy lied and the State should have reasonably known that
Kennedy was giving perjured testimony.” Appellant stated that “two separate
individuals have come forward with information that Kennedy lied at trial” and
argued that “[t]his new evidence requires an evidentiary hearing[.]” Appellant
further argued that the state had “withheld information that Jamison Kennedy was
1 Appellant’s petition was titled “First Petition to Vacate or Set Aside Judgment of Conviction or Sentence.” their witness and an informant in another murder trial prior to serving as a
government witness in this case.”
Appellant attached to her petition letters from two individuals, John
Cline and Russell Newsome, both of whom claimed to have been incarcerated with
Kennedy. The letters were sent to appellant in March and April 2014. Cline called
Kennedy “a snitch” and referred to appellant as a “very pretty woman.” He indicated
that Kennedy told him “he was going to try to put you in prison” and admitted to
him that “he was gonna do whatever it took to put you in prison.” Newsome stated,
“I’m not sure what is true or not, but I’m pretty sure he lied about you” and that
“[Kennedy] said he made sure you got life.”
On March 12, 2019, the trial court denied appellant’s petition for
postconviciton relief. The court issued findings of fact and conclusions of law. With
regard to appellant’s claim that the state committed a Brady violation, the trial court
concluded that “Petitioner has not shown that the State was in possession of these
letters, and therefore, has not shown that the State suppressed this evidence under
Brady.” The court also found that the letters were not credible or material.
Additionally, the court concluded that the claim that the state committed a Brady
violation by failing to provide the defense with information that Kennedy had
previously been an informant in another murder trial is barred by res judicata,
noting that the exact issue had been overruled in McFeeture, 2015-Ohio-1814, 36
N.E.3d 689, at ¶ 129. The court also rejected the remaining arguments raised. Appellant has appealed the trial court’s denial of her petition.2
Law and Analysis
Under her sole assignment of error, appellant claims that the trial
court’s summary dismissal of her petition violated her right to due process. She
argues that her petition demonstrated a genuine issue of material fact sufficient to
warrant an evidentiary hearing because there was new evidence from two inmates
that supported the defense’s contention that Kennedy had committed perjury and
lied about appellant’s confession.
“The postconviction relief process is a civil collateral attack on a
criminal judgment, in which the petitioner may present constitutional issues to the
court that would otherwise be impossible to review because the evidence supporting
the issues is not contained in the record of the petitioner’s criminal conviction.”
State v. Curry, 8th Dist. Cuyahoga No. 108088, 2019-Ohio-5338, ¶ 12, citing State
v. Calhoun, 86 Ohio St.3d 279, 281, 1999-Ohio-102, 714 N.E.2d 905, and State v.
Carter, 10th Dist. Franklin No. 13AP-4, 2013-Ohio-4058, ¶ 15. “[C]ourts are not
required to hold a hearing in every postconviction case.” State ex rel. Madsen v.
Foley Jones, 106 Ohio St.3d 178, 2005-Ohio-4381, 833 N.E.2d 291, ¶ 10 (citations
omitted).
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[Cite as State v. McFeeture, 2020-Ohio-801.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 108434 v. :
HOLLY McFEETURE, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: March 5, 2020
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-12-564265-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Katherine Mullin and Anthony Thomas Miranda, Assistant Prosecuting Attorneys, for appellee.
Mark A. Stanton, Cuyahoga County Public Defender, and Erika B. Cunliffe, Assistant Public Defender, for appellant.
SEAN C. GALLAGHER, P.J.:
Appellant Holly McFeeture appeals the decision of the trial court that
denied her petition for postconviction relief. Upon review, we affirm the trial court’s
decision. Background
In 2013, a jury found appellant guilty of aggravated murder and
contaminating a substance for human consumption. The convictions arose from the
2006 death of the victim, who was her fiancé. The state’s theory was that appellant
poisoned the victim by putting antifreeze in his iced tea. The defense claimed that
the victim committed suicide.
Prior to sentencing, appellant filed a motion for a new trial in which
she claimed the state’s failure to disclose impeachment material against one of the
state’s witnesses, Jamison Kennedy, who had been an informant in another murder
case, was in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d
215 (1963). Kennedy testified during appellant’s trial that he and appellant dated
for a time, and that appellant had confessed to him that she put something in the
victim’s drinks, he got sick, and died. After their relationship soured, there was an
incident where appellant called the police on Kennedy, and Kennedy subsequently
was charged and convicted for assaulting the officers and was sentenced to prison.
The trial court denied appellant’s motion for a new trial. Appellant
was sentenced to life in prison with parole eligibility after serving 30 years.
On direct appeal, appellant’s conviction was affirmed. State v.
McFeeture, 2015-Ohio-1814, 36 N.E.3d 689 (8th Dist.). In discussing the motion
for a new trial, the court did not agree that Kennedy’s testimony was the “centerpiece
of the state’s case”; rather, it found that “the key witness in this case was the medical
examiner” who “performed the autopsy and provided extensive testimony regarding his findings showing [the victim] died of chronic intoxication of a chemical found in
antifreeze, which ruled out suicide.” (Emphasis sic.) Id. at ¶ 126. The court also
recognized that Kennedy’s credibility had been “very aggressively attacked” at trial,
and determined “the undisclosed evidence would only furnish an additional basis to
challenge his credibility, and therefore, it would be considered cumulative, not
material.” Id. at ¶ 127. The court further concluded that “this undisclosed
information is not so material for Brady purposes as to give rise to a reasonable
probability that the outcome of the jury trial would have been different if the
information had been disclosed to the defense prior to trial.” Id. at ¶ 129.
On April 25, 2014, appellant filed a petition for postconviction relief.1
Among other challenges, appellant claimed that “[t]he State failed to disclose
evidence regarding Kennedy.” Specifically, appellant argued that she was denied
her constitutional rights to due process and a fair trial “because the State failed to
comply with its affirmative disclosure obligations” pursuant to Brady, 373 U.S. 83,
83 S.Ct. 1194, 10 L.Ed.2d 215. Appellant claimed that “there is newly discovered
evidence that Kennedy lied and the State should have reasonably known that
Kennedy was giving perjured testimony.” Appellant stated that “two separate
individuals have come forward with information that Kennedy lied at trial” and
argued that “[t]his new evidence requires an evidentiary hearing[.]” Appellant
further argued that the state had “withheld information that Jamison Kennedy was
1 Appellant’s petition was titled “First Petition to Vacate or Set Aside Judgment of Conviction or Sentence.” their witness and an informant in another murder trial prior to serving as a
government witness in this case.”
Appellant attached to her petition letters from two individuals, John
Cline and Russell Newsome, both of whom claimed to have been incarcerated with
Kennedy. The letters were sent to appellant in March and April 2014. Cline called
Kennedy “a snitch” and referred to appellant as a “very pretty woman.” He indicated
that Kennedy told him “he was going to try to put you in prison” and admitted to
him that “he was gonna do whatever it took to put you in prison.” Newsome stated,
“I’m not sure what is true or not, but I’m pretty sure he lied about you” and that
“[Kennedy] said he made sure you got life.”
On March 12, 2019, the trial court denied appellant’s petition for
postconviciton relief. The court issued findings of fact and conclusions of law. With
regard to appellant’s claim that the state committed a Brady violation, the trial court
concluded that “Petitioner has not shown that the State was in possession of these
letters, and therefore, has not shown that the State suppressed this evidence under
Brady.” The court also found that the letters were not credible or material.
Additionally, the court concluded that the claim that the state committed a Brady
violation by failing to provide the defense with information that Kennedy had
previously been an informant in another murder trial is barred by res judicata,
noting that the exact issue had been overruled in McFeeture, 2015-Ohio-1814, 36
N.E.3d 689, at ¶ 129. The court also rejected the remaining arguments raised. Appellant has appealed the trial court’s denial of her petition.2
Law and Analysis
Under her sole assignment of error, appellant claims that the trial
court’s summary dismissal of her petition violated her right to due process. She
argues that her petition demonstrated a genuine issue of material fact sufficient to
warrant an evidentiary hearing because there was new evidence from two inmates
that supported the defense’s contention that Kennedy had committed perjury and
lied about appellant’s confession.
“The postconviction relief process is a civil collateral attack on a
criminal judgment, in which the petitioner may present constitutional issues to the
court that would otherwise be impossible to review because the evidence supporting
the issues is not contained in the record of the petitioner’s criminal conviction.”
State v. Curry, 8th Dist. Cuyahoga No. 108088, 2019-Ohio-5338, ¶ 12, citing State
v. Calhoun, 86 Ohio St.3d 279, 281, 1999-Ohio-102, 714 N.E.2d 905, and State v.
Carter, 10th Dist. Franklin No. 13AP-4, 2013-Ohio-4058, ¶ 15. “[C]ourts are not
required to hold a hearing in every postconviction case.” State ex rel. Madsen v.
Foley Jones, 106 Ohio St.3d 178, 2005-Ohio-4381, 833 N.E.2d 291, ¶ 10 (citations
omitted). Before granting a hearing on a petition for postconviction relief, “the court
shall determine whether there are substantive grounds for relief.” R.C. 2953.21(D).
“In making such a determination, the court shall consider, in addition to the
2Appellant subsequently filed a motion to stay the appeal because she filed a motion for leave to file a delayed motion for new trial in the trial court. This court denied the motion to stay. petition, the supporting affidavits, and the documentary evidence, all the files and
records pertaining to the proceedings against the petitioner * * *.” Id.
A trial court’s ruling on a petition for postconviction relief is reviewed
for an abuse of discretion. Curry at ¶ 15, citing State v. Gondor, 112 Ohio St.3d 377,
2006-Ohio-6679, 860 N.E.2d 77, ¶ 45. “The trial court does not abuse its discretion
in dismissing a petition without a hearing if (1) the petitioner fails to set out
sufficient operative facts to establish substantive grounds for relief, or (2) the
operation of res judicata prohibits the claims made in the petition.” Id., citing State
v. Abdussatar, 8th Dist. Cuyahoga No. 92439, 2009-Ohio-5232, ¶ 15.
Appellant argues that the new evidence further supports her Brady
claim. In Brady, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, the United States
Supreme Court held “that the suppression by the prosecution of evidence favorable
to an accused upon request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution.” Id. at 87. Brady is not implicated when the information “is not wholly
within the control of the prosecution.” Coe v. Bell, 161 F.3d 320, 344 (6th Cir.1998).
Further, the prosecution “is not required under Brady to furnish a defendant
evidence which, with any reasonable diligence, he can obtain for himself.” United
States v. Glass, 819 F.2d 1142, 1987 U.S.App. LEXIS 7247, 6 (6th Cir.1987), citing
United States v. Davis, 787 F.2d 1501, 1505 (11th Cir.1986) (1986).
First, we find the trial court correctly determined that the claim that
the state committed a Brady violation by failing to provide the defense with information that Kennedy had previously been an informant in another murder trial
is barred by res judicata. This issue was decided in McFeeture, 2015-Ohio-1814, 36
N.E.3d 689, at ¶ 129.
Next, we find appellant has not demonstrated that any due process
violation may have occurred. In this case, the government did not suppress
favorable evidence in violation of Brady because the state did not possess the
documents, which did not even exist at the time of trial. Also, there is nothing to
suggest that the state knowingly used false testimony to obtain a conviction. See
Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) (“a State
may not knowingly use false evidence, including false testimony, to obtain a tainted
conviction* * *.”) Further, we are unable to conclude the trial court abused its
discretion in finding the statements made in the letters lacked credibility.
Because appellant did not set forth credible operative facts to
establish substantive grounds for relief, the trial court did not abuse its discretion in
dismissing the petition without a hearing. Accordingly, appellant’s sole assignment
of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_____ SEAN C. GALLAGHER, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., and RAYMOND C. HEADEN, J., CONCUR