[Cite as State v. Phelps, 2016-Ohio-2631.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 103206
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
LARRY PHELPS DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-93-296956-A
BEFORE: Stewart, P.J., S. Gallagher, J., and Laster Mays, J.
RELEASED AND JOURNALIZED: April 21, 2016 ATTORNEYS FOR APPELLANT
Kort Gatterdam Erik P. Henry Carpenter, Lipps & Leland, L.L.P. 280 North High Street, Suite 1300 Columbus, OH 43215
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor
Daniel T. Van Assistant County Prosecutor Justice Center, 8th Floor 1200 Ontario Street Cleveland, OH 44113 MELODY J. STEWART, P.J.:
{¶1} Defendant-appellant Larry Phelps appeals the denial of his second motion
for a new trial. On appeal, Phelps argues that the court improperly denied his motion
without a hearing. We disagree and affirm.
{¶2} On November 17, 1988, a hiker walking through the woods near Erie,
Pennsylvania, found the partially buried skeletal remains of an unidentified male. The
remains were found approximately ten yards down a steep embankment off of Interstate
90. The body was bound at the ankles with wire and a leather belt was entwined through
the legs. The body also had a plastic bag clinging to portions of the skull. The county
coroner recorded the death as a homicide. Forensic analysis and dental records later
revealed that the body belonged to Merle Lee Johnston, a northeast Ohio resident, who
went missing in August 1985.
{¶3} In 1992, the Cuyahoga County Grand Jury indicted Phelps on charges of
aggravated murder with a felony-murder specification, aggravated robbery, and
kidnapping, in connection with Johnston’s disappearance and homicide. At trial, the
state presented the testimony of Laura Phelps, who was married to Phelps at the time of
Johnston’s disappearance in August 1985.
{¶4} In exchange for immunity, Laura testified that at the time of Johnston’s death
she was living with Phelps and worked as a prostitute. Phelps would act as her pimp and
would sometimes also work as a “repo” man. While working on the night of August 26, 1985, Laura was approached by a man in a blue car who requested an act of bondage.
She declined the advances and carried on with her night. When she arrived home, she
noticed the blue car on the street in front of her house. She entered her home and
proceeded upstairs to bathe and smoke marijuana. Afterwards, she went downstairs and
the man who had solicited her was in the living room with Phelps. She testified that she
witnessed Phelps hit the man in the shoulder or face causing the man to fall over.
{¶5} The next day, when Laura returned home from her children’s school, she saw
the same man sitting on the basement floor leaning against a pole. Laura testified that
after she saw the man, Phelps told her not to go into the basement anymore. Later that
night, Laura went down to the basement and witnessed Phelps order the man to place a
plastic bag over his head. According to Laura, Phelps told her that he did not want the
man to see where he was going. Phelps told Laura that they were going to give the man
a ride. She then observed Phelps give the man a “bear hug.” This upset Laura so she
went upstairs. She did not recall how much time passed, but eventually Phelps “told
[her] to get into the car it was time to go.” She testified that Phelps told her that they
were going to Cincinnati to visit his mother, but admitted that they never went to
Cincinnati. Laura testified that she was high and drunk and could not say where they
went, but she did remember that they drove on the freeway. Laura testified that she passed
out in the car and woke up when the car stopped. She did not know where they were
when they stopped but “[Phelps] was outside [of] the car.” {¶6} A few weeks later, a Cleveland police officer stopped Laura in Johnston’s
car. Phelps, who was with Laura at the time, explained to the police officer when asked
why they were driving a missing man’s vehicle, that he had recently repossessed the
vehicle at the request of a “white man.” The officer allowed the two to go and wrote up
a police report. The car was later towed from the parking lot of MetroHealth Hospital
where Laura had parked while at the hospital.
{¶7} A jury found Phelps guilty of all three charges. The court sentenced him to a
term of life imprisonment on the aggravated murder count, consecutive to lesser prison
terms on the aggravated robbery and kidnapping counts. Phelps directly appealed his
convictions, which were upheld by this court in State v. Phelps, 8th Dist. Cuyahoga No.
69157, 1996 Ohio App. LEXIS 4067 (Sept. 19, 1996). The Ohio Supreme Court
declined review. State v. Phelps, 78 Ohio St.3d 1515, 679 N.E.2d 310 (1997).
{¶8} In 2009, Phelps filed a motion requesting leave to file a motion for a new
trial. The basis for the new trial motion was the newly discovered evidence that Laura
had been hypnotized prior to trial, a fact that was undisclosed to the defense. Following
an evidentiary hearing in which Laura invoked her Fifth Amendment right not to
incriminate herself, the trial court summarily denied the motion. This court affirmed the
trial court’s decision on the basis that the hypnosis did not appear to produce any
information that was not already disclosed to police prior to the hypnosis sessions. State v.
Phelps, 192 Ohio App.3d 484, 2011-Ohio-706, 949 N.E.2d 567, ¶ 38 (8th Dist.) (citing
State v. Johnston, 39 Ohio St.3d 48, 50-51, 529 N.E.2d 898 (1988), for the proposition that testimony is admissible following hypnosis if it is determined that the testimony is
consistent with pre-hypnosis memory of events). Although the court acknowledged that
Laura’s hypnosis was newly discovered evidence, it concluded based on Johnston, that
her testimony would have been admissible at trial and therefore Phelps was not materially
prejudiced by the state’s failure to disclose. Phelps at ¶ 51.
{¶9} The pre-hypnosis information that the court referred to in Phelps, supra, was
contained in a police report written by Detective Ernest Hayes, of the Cleveland police
department. In the report, Detective Hayes transcribed an interview he had with Laura in
February 1988 soon after an incident of domestic abuse where Phelps left Laura severely
beaten and seeking refuge at a women’s shelter. During the interview, Laura told Hayes
a version of the story surrounding Johnston’s disappearance and death — notably, the
interview occurred ten months before Johnston’s body was discovered.
{¶10} Laura told Hayes that she came into possession of the blue Cutless Supreme
because her husband killed the owner. According to the police report, Laura explained
that she was working the area of East 40th Street and Prospect Avenue when a male
stopped her while in his vehicle and asked to have sex with her. The man told Laura that
he did not have money to pay her but that he did have some credit cards. They tried to
use some of the credit cards, but they were declined. Not knowing what to do, she called
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as State v. Phelps, 2016-Ohio-2631.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 103206
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
LARRY PHELPS DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-93-296956-A
BEFORE: Stewart, P.J., S. Gallagher, J., and Laster Mays, J.
RELEASED AND JOURNALIZED: April 21, 2016 ATTORNEYS FOR APPELLANT
Kort Gatterdam Erik P. Henry Carpenter, Lipps & Leland, L.L.P. 280 North High Street, Suite 1300 Columbus, OH 43215
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor
Daniel T. Van Assistant County Prosecutor Justice Center, 8th Floor 1200 Ontario Street Cleveland, OH 44113 MELODY J. STEWART, P.J.:
{¶1} Defendant-appellant Larry Phelps appeals the denial of his second motion
for a new trial. On appeal, Phelps argues that the court improperly denied his motion
without a hearing. We disagree and affirm.
{¶2} On November 17, 1988, a hiker walking through the woods near Erie,
Pennsylvania, found the partially buried skeletal remains of an unidentified male. The
remains were found approximately ten yards down a steep embankment off of Interstate
90. The body was bound at the ankles with wire and a leather belt was entwined through
the legs. The body also had a plastic bag clinging to portions of the skull. The county
coroner recorded the death as a homicide. Forensic analysis and dental records later
revealed that the body belonged to Merle Lee Johnston, a northeast Ohio resident, who
went missing in August 1985.
{¶3} In 1992, the Cuyahoga County Grand Jury indicted Phelps on charges of
aggravated murder with a felony-murder specification, aggravated robbery, and
kidnapping, in connection with Johnston’s disappearance and homicide. At trial, the
state presented the testimony of Laura Phelps, who was married to Phelps at the time of
Johnston’s disappearance in August 1985.
{¶4} In exchange for immunity, Laura testified that at the time of Johnston’s death
she was living with Phelps and worked as a prostitute. Phelps would act as her pimp and
would sometimes also work as a “repo” man. While working on the night of August 26, 1985, Laura was approached by a man in a blue car who requested an act of bondage.
She declined the advances and carried on with her night. When she arrived home, she
noticed the blue car on the street in front of her house. She entered her home and
proceeded upstairs to bathe and smoke marijuana. Afterwards, she went downstairs and
the man who had solicited her was in the living room with Phelps. She testified that she
witnessed Phelps hit the man in the shoulder or face causing the man to fall over.
{¶5} The next day, when Laura returned home from her children’s school, she saw
the same man sitting on the basement floor leaning against a pole. Laura testified that
after she saw the man, Phelps told her not to go into the basement anymore. Later that
night, Laura went down to the basement and witnessed Phelps order the man to place a
plastic bag over his head. According to Laura, Phelps told her that he did not want the
man to see where he was going. Phelps told Laura that they were going to give the man
a ride. She then observed Phelps give the man a “bear hug.” This upset Laura so she
went upstairs. She did not recall how much time passed, but eventually Phelps “told
[her] to get into the car it was time to go.” She testified that Phelps told her that they
were going to Cincinnati to visit his mother, but admitted that they never went to
Cincinnati. Laura testified that she was high and drunk and could not say where they
went, but she did remember that they drove on the freeway. Laura testified that she passed
out in the car and woke up when the car stopped. She did not know where they were
when they stopped but “[Phelps] was outside [of] the car.” {¶6} A few weeks later, a Cleveland police officer stopped Laura in Johnston’s
car. Phelps, who was with Laura at the time, explained to the police officer when asked
why they were driving a missing man’s vehicle, that he had recently repossessed the
vehicle at the request of a “white man.” The officer allowed the two to go and wrote up
a police report. The car was later towed from the parking lot of MetroHealth Hospital
where Laura had parked while at the hospital.
{¶7} A jury found Phelps guilty of all three charges. The court sentenced him to a
term of life imprisonment on the aggravated murder count, consecutive to lesser prison
terms on the aggravated robbery and kidnapping counts. Phelps directly appealed his
convictions, which were upheld by this court in State v. Phelps, 8th Dist. Cuyahoga No.
69157, 1996 Ohio App. LEXIS 4067 (Sept. 19, 1996). The Ohio Supreme Court
declined review. State v. Phelps, 78 Ohio St.3d 1515, 679 N.E.2d 310 (1997).
{¶8} In 2009, Phelps filed a motion requesting leave to file a motion for a new
trial. The basis for the new trial motion was the newly discovered evidence that Laura
had been hypnotized prior to trial, a fact that was undisclosed to the defense. Following
an evidentiary hearing in which Laura invoked her Fifth Amendment right not to
incriminate herself, the trial court summarily denied the motion. This court affirmed the
trial court’s decision on the basis that the hypnosis did not appear to produce any
information that was not already disclosed to police prior to the hypnosis sessions. State v.
Phelps, 192 Ohio App.3d 484, 2011-Ohio-706, 949 N.E.2d 567, ¶ 38 (8th Dist.) (citing
State v. Johnston, 39 Ohio St.3d 48, 50-51, 529 N.E.2d 898 (1988), for the proposition that testimony is admissible following hypnosis if it is determined that the testimony is
consistent with pre-hypnosis memory of events). Although the court acknowledged that
Laura’s hypnosis was newly discovered evidence, it concluded based on Johnston, that
her testimony would have been admissible at trial and therefore Phelps was not materially
prejudiced by the state’s failure to disclose. Phelps at ¶ 51.
{¶9} The pre-hypnosis information that the court referred to in Phelps, supra, was
contained in a police report written by Detective Ernest Hayes, of the Cleveland police
department. In the report, Detective Hayes transcribed an interview he had with Laura in
February 1988 soon after an incident of domestic abuse where Phelps left Laura severely
beaten and seeking refuge at a women’s shelter. During the interview, Laura told Hayes
a version of the story surrounding Johnston’s disappearance and death — notably, the
interview occurred ten months before Johnston’s body was discovered.
{¶10} Laura told Hayes that she came into possession of the blue Cutless Supreme
because her husband killed the owner. According to the police report, Laura explained
that she was working the area of East 40th Street and Prospect Avenue when a male
stopped her while in his vehicle and asked to have sex with her. The man told Laura that
he did not have money to pay her but that he did have some credit cards. They tried to
use some of the credit cards, but they were declined. Not knowing what to do, she called
Phelps who told her to bring the man and his car back to their home. Once they arrived
at the home, Phelps hit the man in his face, knocking him down. Phelps took the man to
the basement and handcuffed him to a pole. According to Laura, Phelps rummaged through the man’s briefcase and found papers inside the briefcase with the name “Merle
Lee Johnson”1 written on them.
{¶11} Laura explained to the detective that the man remained in her basement until
the afternoon when she told Phelps that she wanted the man out of the house before the
kids came home from school. Phelps and Laura went to the basement and Phelps stood
the man up and punched him in the chest. According to Laura, Phelps held the victim
around the neck with his arms until the man fell to the floor and did not move. A plastic
bag was placed over his head and his lower body was wrapped in a blanket. Phelps
carried him up the stairs and placed the body in the man’s car. Thereafter, Laura and
Phelps drove to Pennsylvania and New York, with the body in the trunk of the car.
Laura confessed that they were both high on drugs at the time.
{¶12} Laura stated that at some point they stopped along the side of the road and
Phelps took the body out of the trunk and disposed of it in a rural, wooded area. They
threw the man’s briefcase, papers, shoes and glasses out of the car at another location and
returned to Cleveland. There was no doubt in her mind that the man was dead when they
dumped his body. As a result of this information, Hayes sent alerts to police departments
in Pennsylvania and New York requesting that any unidentified body be reported to the
Cleveland homicide unit.
{¶13} Two days after the interview, Laura called Hayes to recant. After speaking
to Laura again, Hayes wrote a second report in which he explained that Laura told him
In the police report, the victim’s last name is spelled “Johnson,” not “Johnston.” 1 that after speaking with him initially, she went into her basement and realized that she
could not recall anything that she thought had happened. She said that she was sorry that
she started the story and that she thought “that she was given the information by [Phelps]
to keep her in line.” Hayes wrote in the police report that he asked Laura if she was
willing to be hypnotized to see if her memory could be brought back to the day in
question. The police report indicated that Laura agreed to try hypnosis.
{¶14} On April 30, 1988, Hayes authored a third report. The report explains how
he and police sergeant John Fransen, and Cuyahoga County Prosecutor Ed Walsh
discussed hypnotizing Laura. According to the report, Walsh suggested that police
officer Robert Kahl conduct the hypnosis after reviewing reports of the missing person
investigation. Kahl agreed to do the hypnosis but told Hayes that he could not guarantee
any results. According to the April 30 report, arrangements were made to go forward
with the hypnosis on May 10-12, 1988. The record is devoid of any evidence of the
hypnosis until 21 years later when Phelps filed his first motion for a new trial after
discovering that Laura had been hypnotized prior to trial.
{¶15} On October 30, 2014, Phelps filed a motion for leave to file a second motion
for a new trial. In it, he argued that he should be given a new trial because: 1) Laura has
no independent memory of the facts she testified to and believes that her testimony was
the result of hypnosis, 2) Officer Robert Kahl was in fact an experienced hypnotist that
“knew what he was doing” even though he was not a licensed psychiatrist or
psychologist, and 3) the affidavit of a Leonard Aiken, Jr., reveals that another man, Gregory Lockett, killed Johnston. The court granted the motion for leave to file on the
basis that at least Aiken’s affidavit presented new evidence and indicated that it would
proceed to rule on the merits of the motion. After reviewing the documents, the court
denied the motion without a hearing. In its order denying the motion, the court stated
that the hypnosis sessions were not new evidence because the entire issue was previously
considered in the 2009 motion for a new trial, and it explained that it found Aiken’s
affidavit incredible and contradictory to other police reports in evidence. Phelps appeals
this denial.
{¶16} Phelps submitted his second motion for a new trial under Crim.R. 33(A)(6).
The rule allows a trial court to grant a new trial “[w]hen new evidence material to the
defense is discovered, which the defendant could not with reasonable diligence have
discovered and produced at the trial.” A Crim.R. 33(A)(6) motion for a new trial on the
basis of newly discovered evidence may be granted only if that evidence:
(1) discloses a strong probability that it will change the result if a new trial is granted, (2) has been discovered since the trial, (3) is such as could not in the exercise of due diligence have been discovered before the trial, (4) is material to the issues, (5) is not merely cumulative to former evidence, and (6) does not merely impeach or contradict the former evidence.
State v. Petro, 148 Ohio St. 505, 76 N.E.2d 370 (1947), syllabus. By its terms, the rule
does not require an evidentiary hearing on the motion. State v. Connor, 8th Dist.
Cuyahoga No. 103092, 2016-Ohio-301, ¶ 23. Therefore, the decision whether to hold an
evidentiary hearing is committed to the sound discretion of the trial court and will be upheld absent an abuse of discretion. Id. Likewise, the decision whether to grant the
motion for a new trial lies within the sound discretion of the trial court. Id.
{¶17} We cannot conclude that the trial court abused its discretion when it denied
the motion without a hearing. To begin, as the trial court noted, Laura’s hypnosis is not
new evidence. The hypnosis issue was previously addressed in Phelps’s first motion for
a new trial and the denial of that motion was upheld on appeal, in large part, because of
Laura’s February 1988 interview with Detective Hayes where she described the
circumstances surrounding Johnston’s murder in great detail prior to the hypnosis
sessions. Phelps maintains that there is new evidence on this issue because Laura was
unsure about what effect the hypnosis sessions had on her memory at the time of the first
motion for a new trial and that it is only through ongoing counseling that she was able to
discover that she had no independent memory of Johnston’s disappearance. We are not
convinced. This alleged new evidence does not explain how Laura gave a detailed
description of the murder and disposal of the body to Detective Hayes in February 1988.
Facts elicited in Laura’s initial interview, which were substantially similar to facts
uncovered at trial, include the fact that the body was discovered in a wooded, remote
location near the New York/Pennslyvania border, that the head of the body was covered
by a plastic bag, and that the body was wrapped in a tarp.
{¶18} Further, as expert testimony at trial revealed, Johnston’s skeleton had
several broken bones that were consistent with blows to the head and pressure to the neck
and abdomen — supporting Laura’s testimony that Phelps hit Johnston in the face and bear hugged him. Lastly, the contention that the hypnotist, Detective Kahl, might have
been experienced at hypnosis and able to effectuate results (a heavily debated fact during
the first motion for a new trial), does not explain how Laura’s most detailed description
of the murder occurred prior to hypnosis.
{¶19} We also conclude that the court committed no abuse of discretion when it
determined, without a hearing, that the Aiken affidavit was insufficient to warrant a new
trial. In May 2012, Aiken, who has a felony conviction for murder, executed an affidavit
averring that another man, Gregory Lockett, likely killed the man who was found in
November 1988 off of Interstate 90. Aiken avers that in August 1990, he was
interviewed by Erie County police detectives about the murder of a local woman, Dorothy
Stovall, whose body was found shot and wrapped in a carpet underneath an Erie County
bridge. The point of the interview was to investigate the homicide of the body found in
Erie County off of Interstate 90 (the body later identified as Johnston) and to determine
whether the woman’s murder and the Johnston murder were somehow connected.
Although Lockett was tried and convicted of murdering Stovall, police thought Aiken
might have information regarding the woman’s murder and the newly discovered body
after Lockett told police officers that he was wrongly convicted and that Aiken was the
true killer.
{¶20} In his affidavit, Aiken states that he remembers Lockett confessing to him
that he murdered a black female2 and a white male. According to Aiken, Lockett told
Although Aiken does not explicitly say that the black woman he is referring to in his 2 him that he was buying weed from the white male when the male pulled a knife on him in
an attempt to rob him. Lockett allegedly told Aiken that he shot the man with a “.25
automatic.” Lockett also shot the black female when she tried to run. According to the
affidavit, Lockett advised Aiken that after the killings he wrapped the woman’s body in a
carpet and dumped her under the Franklin Terrace Bridge in Erie, Pennsylvania. Aiken
further averred that Lockett told him that he drove the white male near the grape farms in
Harborcreek, used a belt to tie the dead man up and drag his body, and then proceeded to
place the man against a tree where he used a shotgun to fire shots into the man’s head and
chest, so that he could not be identified by dental records. Aiken states Lockett told him
that he placed a green or black garbage bag over the man’s head so that blood would not
splatter and showed Aiken the blood stains on the front and back seats of his car.
{¶21} While Aiken’s affidavit paints a harrowing picture of a possible murder, we
must conclude that if a man was murdered the same day as Stovall, then that man could
not have been Johnston. Our determination on this point is informed by a police report
attached to Phelps’s motion for leave. The police report states that the police discovered
Stovall’s body on February 11, 1985. According to a missing persons report filed by
Johnston’s mother on August 28, 1985, Johnston was last heard from on the evening of
August 26, 1985, when he called his mother to let her know that he was at dinner and
affidavit is Dorothy Stovall, Aiken does state that police were investigating the murder of Stovall when they interviewed him, and police reports of those initial interviews have Aiken referring to Lockett’s victims as Stovall and another “white man.” would be home soon. Thus, because Johnston did not go missing until late August 1985,
he could not have been the alleged murder victim Aiken referred to in his affidavit.
{¶22} Judgment affirmed.
It is ordered that appellee recover of said 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.
______________________________________________ MELODY J. STEWART, PRESIDING JUDGE
ANITA LASTER MAYS, J., CONCURS; SEAN C. GALLAGHER, J., CONCURS IN JUDGMENT ONLY