[Cite as State v. Tiedjen, 2019-Ohio-2430.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 106794
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
JOHN R. TIEDJEN DEFENDANT-APPELLANT
JUDGMENT: REVERSED AND REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-89-238376-ZA
BEFORE: Blackmon, J., Kilbane, A.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: June 20, 2019 -i-
ATTORNEY FOR APPELLANT
Kimberly Kendall Corral 4403 St. Clair Avenue Cleveland, Ohio 44133
ATTORNEYS FOR APPELLEE
Michael C. O’Malley Cuyahoga County Prosecutor
By: Frank Romeo Zeleznikar Kristen Sobieski Assistant County Prosecutors The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 PATRICIA ANN BLACKMON, J.:
{¶1} John Tiedjen (“Tiedjen”) appeals from the trial court’s denial of his motion
for leave to file motion for new trial and assigns the following errors for our review:
I. The trial court erred in failing to grant a new trial or, in the alternative, a more complete hearing on the appellant’s motion for a new trial.
II. The trial court erred in failing to grant appellant’s motion for new trial where the government withheld Brady evidence that was material to the guilt or non-guilt of the appellant.
III. The trial court erred in limiting the scope of the defense expert’s testimony as his expertise and his opinion bore directly on whether the new evidence was material and/or exculpatory.
IV. The trial court erred in failing to properly sanction the government for
attempting to admit a falsified and inaccurate affidavit as evidence.
{¶2} Having reviewed the record and pertinent law, we vacate the court’s
judgment and remand this case for either: (1) an evidentiary hearing based on State v.
Jones, 71 Ohio St.3d 293, 643 N.E.2d 547 (1994), to determine whether Tiedjen is
substantially responsible for the missing evidence if the evidence is, in fact, still missing;
or (2) a full hearing on Tiedjen’s motion for a new trial if the evidence is located. The
apposite facts follow.
I. Facts and Procedural History
{¶3} Tiedjen and Brian McGary (“McGary”) “were as close as natural brothers”
and lived in the upstairs apartment of a house on E. 57th Street in Cleveland. On the
morning of April 1, 1989, the Cleveland police found McGary’s body in the bedroom of
the apartment. McGary had been stabbed in the left chest and shot in the forehead with a .22 caliber rifle. McGary was 18 years old at the time of his death. Initially, Tiedjen
told his family and friends that he did not know how McGary died, although he believed
McGary committed suicide. Tiedjen was arrested later in the day on April 1, 1989. He
originally told the police that he did not know how McGary died, but on April 4, 1989,
after three days of interrogation, Tiedjen gave a written statement to the police indicating
that he shot McGary in self-defense.
{¶4} On April 18, 1989, Tiedjen was indicted for murder with a firearm
specification. On June 2, 1989, 45 days after Tiedjen was indicted, a jury found him
guilty as charged, and the court sentenced him to 15-years-to-life in prison for the murder
and three years in prison for the firearm specification.
{¶5} Tiedjen filed a direct appeal, and on February 7, 1991, this court affirmed
his convictions. State v. Tiedjen, 8th Dist. Cuyahoga No. 57996, 1991 Ohio App. LEXIS
547 (Feb. 7, 1991). On October 27, 2004, Tiedjen filed a postconviction motion to retain
blood evidence, which the trial court denied. This court affirmed the denial of Tiedjen’s
postconviction motion in State v. Tiedjen, 8th Dist. Cuyahoga No. 85674,
2004-Ohio-4989, concluding that there was no indication that the blood evidence was part
of the trial court record.
{¶6} On October 3, 2016, Tiedjen filed a motion for leave to file a motion for
new trial based on newly discovered evidence. The court initially denied this motion;
however, the court subsequently vacated the denial and allowed Tiedjen to supplement his
motion. Although captioned as a “motion for leave,” Tiedjen argues in this document that he is entitled to a new trial under Crim.R. 33 and Brady v. Maryland, 373 U.S. 83,
87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
{¶7} To support his request for a new trial, Tiedjen argues that he discovered1 76
crime-scene photographs that were suppressed or never produced by the police, the
prosecutor, or both. Tiedjen further argues that the newly discovered photographs
differed, allegedly in substance, from the ten photographs of the crime scene that were
introduced as evidence during Tiedjen’s murder trial. Additionally, Tiedjen argues that
these newly discovered photographs are material and exculpatory, because “modern crime
scene reconstruction technology has now made it possible to conclusively demonstrate
that [McGary] committed suicide; * * * the shooting could not have occurred as the
government argued at trial; [and] Tiedjen’s alleged confession is demonstrably false.”
Tiedjen also argues that the photographs show that the government manipulated the crime
scene.
{¶8} On July 25, 2017, September 21, 2017, and October 18, 2017, the court held
hearings (“the 2017 hearings”) on Tiedjen’s motion. At these hearings, all 86
crime-scene photographs were introduced into evidence. On January 9, 2018, the court
denied the motion for leave, finding that, although the photographs qualified as newly
discovered evidence, Tiedjen “failed to show the photographs are indeed exculpatory
According to the record, Tiedjen received the new photographs from the Cleveland Police 1
Department after making a request under the Freedom of Information Act. Although the time frame of this request is unclear, Tiedjen argued in his motion for leave for a new trial that “[i]t was only within the last year that Tiedjen fully understood the impact of the staged photographs.” material.” The court also limited the expert forensic testimony that Tiedjen proffered
finding that “improvement in crime scene reconstruction” was not newly discovered
evidence. It is from this order that Tiedjen appeals.
II. Missing Evidence
{¶9} Prior to beginning our review of this case, we sua sponte raise the following
issue: all exhibits from the 2017 hearings, including the newly discovered photographs,
copies of the Cleveland Police Department property log book from April 1, 1989, and
some of the police reports from the 1989 investigation, are missing from the appellate
record. Furthermore, the ten photographs, plus four other exhibits2 that were introduced
into evidence at the 1989 trial, are missing from the trial court record. Additionally,
although this would not be part of the record but may be a source of information in light
of the missing evidence, the prosecutor’s 1989 trial file is missing as well.
{¶10} The missing evidence in this case was last seen at the 2017 hearings.
According to the transcript of these hearings, the exhibits were marked and admitted into
evidence. Specifically, the court instructed the parties to give the exhibits to the court
reporter. When Tiedjen filed his notice of appeal, he properly instructed the clerk’s
office to “prepare and assemble the original papers and exhibits filed in the trial court
[including the] [c]omplete transcript under Appellate Rule 9(B).”
{¶11} App.R. 9(E) states, in part, that
2 According to the 1989 trial transcript, 14 exhibits were introduced into evidence at Tiedjen’s trial. Currently, none of these exhibits can be located. [i]f anything material to either party is omitted from the record by error or accident * * *, the parties by stipulation, or the trial court, * * * or the court of appeals, on proper suggestion or of its own initiative, may direct that omission or misstatement be corrected, and if necessary that a supplemental record be certified, filed, and transmitted. All other questions as to the form and content of the record shall be presented to the court of appeals.
{¶12} In accordance with State v. Tate, 140 Ohio St.3d 442, 2014-Ohio-3667, 19
N.E.3d 888, when this court discovered that all exhibits from the 2017 hearings, as well
as the exhibits from Tiedjen’s trial, were not part of the record, we sua sponte informed
the parties that the evidence was missing, instructed them to supplement the record
pursuant to App.R. 9, and issued three extensions of time to complete the task. To date,
the parties concede that the missing evidence cannot be located or recreated, thus
rendering compliance with App.R. 9(C) futile. Accordingly, because the parties are
unable to supplement the record as ordered, this court has not had the opportunity to view
the newly discovered photographs.
{¶13} At oral argument, defense counsel stated that, in light of the missing
evidence, the parties and the court could not comply with App.R. 9, because the
photographs could not be recreated or stipulated to. See Crutchfield v. Sharon Twp. Bd.
of Zoning Appeals, 9th Dist. Medina No. 04CA0006-M, 2004-Ohio-6265, ¶ 25 (vacating
a zoning violation based on missing evidence and finding that a description of
photographs in a transcript is inadequate without the photographs themselves.
“[W]ithout the actual notice of violation, or a copy of it, and the photographs used to file
the violation and relied upon by the BZA, the trial court was limited to ruling on the
transcript. Unfortunately, the transcript also creates holes in the evidence because a majority of [the] testimony * * * contains [witnesses] describing the photographs; without
the photographs the trial court’s review of the testimony is hampered”).
{¶14} In the case at hand, the state conceded that the parties have black-and-white
photocopies of two of the missing pictures, which are interspersed into Tiedjen’s court
filings. However, these two copies are not reprints of the color photographs and do not
depict the original photographs in any type of detail. Indeed, they most closely resemble
ink blots. The state further conceded that Tiedjen is not at fault in relation to the missing
photographs.
{¶15} Accordingly, we find that the record cannot be settled on remand without
the missing photographs. While a trial court record need not be perfect for appellate
review, we must balance adequacy of the record with the deprivation of a defendant’s due
process rights. See State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d
215, ¶ 161.
{¶16} In Skatzes, the trial court “failed to keep control of the charts used by the
prosecutors during voir dire.” Id. at ¶ 160. The Ohio Supreme Court found that the
“whereabouts of the charts were currently unknown.” Id. The defendant argued that
“effective appellate review is impossible without the exhibits.” Id. However, the court
concluded otherwise, finding that the defendant: failed to request that the exhibits be
admitted into evidence in the trial court; “made no attempt to recreate the contents of the
charts pursuant to App.R. 9(C)”; and failed to make a showing of prejudice. Id. at ¶ 163. {¶17} Upon review, we find that the case at hand is distinguishable from Skatzes.
In Skatzes, the missing evidence was charts used in voir dire that were never made part of
the record. Furthermore, the parties in Skatzes did not attempt to comply with App.R. 9.
{¶18} In the case at hand, Tiedjen presented newly discovered evidence to the trial
court in 2016; the photographs were admitted into evidence in open court and made part
of the record; Tiedjen has not been dilatory and has proceeded in a timely fashion ever
since; the parties attempted, but were unable, to comply with App.R. 9; and the
photographs are critical to the disposition of Tiedjen’s arguments. Accordingly, we find
that Tiedjen has been denied his right to meaningful appellate review.
{¶19} Upon remand, if the evidence is still missing, we direct the trial court to
hold an evidentiary hearing to determine whether Tiedjen is substantially responsible for
the missing exhibits pursuant to the Ohio Supreme Court’s holding in State v. Jones, 71
Ohio St.3d 293, 643 N.E.2d 547 (1994).
{¶20} We further note that there is no evidence before this court of any
wrongdoing on Tiedjen’s part. See In re Holmes, 104 Ohio St.3d 664, 2004-Ohio-7109,
821 N.E.2d 568, ¶ 14 (“reject[ing] the notion that an appellant has the duty to supervise
the actions of a trial court clerk to ensure the proper transmission of the record”). We
also note that it is the duty of the court reporter to correctly prepare the transcript. See
App.R. 9(B)(6)(f) and (g) (“A transcript of proceedings under this rule shall [contain]
[a]n index to exhibits, whether admitted or rejected, briefly identifying each exhibit [and]
[e]xhibits such as papers, maps, photographs, and similar items that were admitted shall be firmly attached, either directly or in an envelope to the inside rear
cover * * *”).
{¶21} “In the event the defendant’s misconduct is determined not to be the cause
of the nonproduction of the appellate record, absence of the record may require reversal
of the underlying conviction and the grant of a new trial.” Jones, 70 Ohio St.3d 293,
297. See also Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 400 N.E.2d 384
(1980) (a new trial may be granted if it is determined, after an evidentiary hearing, that
the record is incomplete and the moving party is not at fault); State v. Polk, 8th Dist.
Cuyahoga No. 57511, 1991 Ohio App. LEXIS 900 (Mar. 7, 1991) (granting a new trial
when the transcript was unavailable through no fault of the parties).
III. Standards of Review of Assigned Errors
{¶22} We review Tiedjen’s assigned errors in part should the missing evidence be
located on remand. In summary, we find the following: (1) the court erred by denying
Tiedjen’s motion for leave; (2) the court abused its discretion by limiting Tiedjen’s expert
witness’s testimony to the extent the testimony was offered to show that the newly
discovered evidence was exculpatory and material; and (3) Tiedjen’s arguments are not
barred by the doctrine of res judicata.
A. Motion for Leave to File Motion for New Trial
{¶23} Generally, motions for a new trial must be filed within 14 days of the
verdict. Crim.R. 33(B). However, when the motion is based on newly discovered
evidence, it must be filed within 120 days after the verdict was rendered. Id. {¶24} As a exception to this rule, a court may grant leave to file a motion for a new
trial if “it is made to appear by clear and convincing proof that the defendant was
unavoidably prevented from the discovery of the evidence upon which he must rely * * *
within the [120]-day period.” Id. See also State v. Corrothers, 8th Dist. Cuyahoga No.
75668, 2000 Ohio App. LEXIS 344 (Feb. 3, 2000). Ohio courts have defined “newly
discovered evidence” as “evidence of facts in existence at the time of trial of which the
party seeking a new trial was justifiably ignorant.” (Citations omitted.) State v.
Holzapfel, 10th Dist. Franklin Nos. 10AP-17 and 10AP-18, 2010-Ohio-2856, ¶ 20.
{¶25} As an example, this court recently held that a defendant’s “supporting
documents clearly and convincingly demonstrate that the appellees were unavoidably
prevented from discovering the evidence,” because “the police reports at issue were in the
exclusive control of the state.” State v. Glover, 8th Dist. Cuyahoga Nos. 102828,
102829, and 102831, 2016-Ohio-2833, ¶ 29.
B. Motion for a New Trial Based on Newly Discovered Evidence
{¶26} Crim.R. 33(A)(6) governs motions for a new trial based on newly
discovered evidence. To grant a properly filed motion under this rule, courts must find
that the new evidence “discloses a strong probability that it will change the result if a new
trial is granted, * * * is material to the issues, * * * is not merely cumulative to former
evidence, and * * * does not merely impeach or contradict the former evidence.” State v.
Petro, 148 Ohio St. 505, 76 N.E.2d 370 (1947), at syllabus. C. Brady Violation
{¶27} Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963),
governs situations when the state withholds evidence that tends to exculpate a criminal
defendant. “When the prosecution withholds material, exculpatory evidence in a
criminal proceeding, it violates the due process right of the defendant under the
Fourteenth Amendment to a fair trial.” State v. Johnston, 39 Ohio St.3d 48, 60, 529
N.E.2d 898 (1988). Brady violations may be found regardless of whether the defense
requested the evidence and “irrespective of the good faith or bad faith of the
prosecution.” Brady at 82, 87. In determining whether suppressed evidence is material,
courts consider whether “there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different.” United
States v. Bagley, 4732 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). “A
‘reasonable probability’ is a probability sufficient to undermine confidence in the
outcome.” Id.
{¶28} The “defendant bears the burden to show that the evidence not produced
was materially exculpatory, or that the failure to produce the evidence was based on bad
faith, in order to demonstrate a due-process violation.” State v. Hartman, 2d Dist.
Montgomery No. 26609, 2016-Ohio-2883, ¶ 84, citing State v. Powell, 132 Ohio St.3d
233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 74-77.
D. Limiting the Expert Witness Testimony {¶29} “The admission or exclusion of relevant evidence rests within the sound
discretion of the trial court.” State v. Sage, 31 Ohio St.3d 173, 180, 510 N.E.2d 343
(1987). “Expert testimony in Ohio is admissible if it will assist the trier of fact in search
of the truth.” State v. Koss, 49 Ohio St.3d 213, 216, 551 N.E.2d 970, 1990 Ohio LEXIS
92 (1990). The test for admissibility of expert testimony “is whether the questioned
evidence is relevant and will assist the trier of fact in understanding evidence presented or
in determining a fact in issue.” State v. Clark, 101 Ohio App.3d 389, 655 N.E.2d 795
(8th Dist.1995). See also Evid.R. 702.
E. Res Judicata
{¶30} Under the doctrine of res judicata, a convicted defendant is generally barred
from raising in a postconviction motion any constitutional claims that were, or could have
been, raised at trial or on direct appeal. State v. Steffen, 70 Ohio St.3d 399, 410, 639
N.E.2d 67 (1994). However, exceptions apply to matters not capable of being raised on
direct appeal.
Because an appeal from the judgment of conviction is limited to the trial court record, a petition for post-conviction relief may defeat the res judicata bar if its claims are based on evidence outside the record. New evidence attached to the petition for post-conviction relief, however, does not automatically defeat the res judicata bar. Evidence outside the record must meet ‘some threshold standard of cogency; otherwise it would be too easy to defeat [res judicata] by simply attaching as exhibits evidence which is only marginally significant and does not advance the petitioner’s claim[.]’ Moreover, the evidence dehors the record must not be evidence which was in existence and available for use at the time of trial and which could and should have been submitted at trial if the defendant wished to use it. State v. Slagle, 8th Dist. Cuyahoga No. 76384, 2000 Ohio App. LEXIS 3641 (Aug. 10,
2000).
IV. The 2017 Hearings
{¶31} At the 2017 hearings, Daniel Chaplin, who was one of Tiedjen’s trial
attorneys in 1989, testified that, at the time of the trial, he had never seen the photographs
that are now being alleged as newly discovered. According to Chaplin, on the day of
trial, he was shown only the ten photographs that were admitted as evidence.
The reason I can be confident about that is that in some of the — there was evidence in the statement that Tiedjen had called his mother and expressed that his stepbrother committed suicide and the note 3 would have been followed up, and the juxtaposition of the weapon would have been further investigated, but we didn’t do any of that because we didn’t know about it.
***
Under the old rule, we didn’t get the photos — the photos were not
developed generally until the day before or the day of trial. If you were set
for trial at 9:00 in the morning and you didn’t plead out, the photos would
come into the prosecutor’s hand at 1:00 in the afternoon, and that’s when
you would get them, before.
{¶32} Asked if he had any time prior to trial to go through the photos, Chaplin
replied, “Absolutely not.” The prosecutor asked, “So no time whatsoever prior to trial?”
Although we do not have the newly discovered photographs to review at the 2017 hearings, 3
there was testimony that the photographs showed a piece of paper sticking out of McGary’s pocket. Defense counsel argues that this paper may have been a suicide note. This piece of paper was not submitted as evidence and defense counsel did not know it existed at the time of trial. “No,” Chaplin responded. Asked why he didn’t request a continuance, Chaplin testified
that “[i]t was a different time. * * * That was routine * * *.”
{¶33} Chaplin further testified that he had never seen the photograph that depicts
the victim’s ex-girlfriend’s purse and jacket in the victim’s bedroom when his body was
discovered. Chaplin explained, “So we did not see the photo that indicates that there was
the presence of another person. * * * Well, we weren’t able to pursue alternate aggressors
or third persons that were in the room as possible suspects. If there was a third person
there, we didn’t know anything about them.”
{¶34} Steven Dever, who was the prosecutor at Tiedjen’s trial in 1989, stated that
while he remembered the case in general, his file, including his notes, could not be
located from the prosecutor’s office. Asked if he recalled the discovery that was
exchanged prior to and during Tiedjen’s trial, Dever testified as follows: “Well, without
any notes to refresh my recollection, no. I can only testify as to what my custom or
practice was, as well as what the — what the operations of the major trials division at that
time were.” According to Dever, the state would “ordinarily provide discovery and
discuss cases so that if it had to go to trial, * * * there wouldn’t be any
surprises, and that the defense was given all the information that was available to us in
order to properly defend their client.”
{¶35} Dever testified that typically “photographs were identified in the police
reports. Those would have been printed up and shared with the defense team. They had
the ability at that time also to order their own set of photographs.” {¶36} According to Dever, his practice was to show exculpatory photographs to
the defense attorneys, but nothing was ever copied and given to them. In other words,
the attorneys would sit in a room and read the state’s file together.
{¶37} As to Tiedjen’s case specifically, asked if he recalled showing the photos of
the crime scene to defense counsel, Dever replied, “All I can testify to is what my practice
was, and I think you would have to go and look at what photos were admitted into
evidence and then you can draw a fair inference that the photos were here.” As noted
previously, the police reports from the 1989 investigation of Tiedjen are not part of the
record on appeal, although they appear to have been used at the 2017 hearings.
{¶38} Dennis Murphy, who was the Cleveland police detective who investigated
Tiedjen’s case in 1989, submitted an affidavit, dated July 16, 2017, detailing various facts
of his investigation. In this affidavit, Murphy stated that 43 crime scene photos were
taken on April 1, 1989, and an additional 25 crime scene photos were taken on April 6,
1989. It appears that this information was taken directly from Murphy’s 1989 police
report, but because that is not part of the record on appeal, we cannot be sure of this. The
affidavit also stated that the photographs “were not staged, manipulated, or withheld by
the Cleveland Police Department at any point during the investigation.”
{¶39} At the court’s suggestion, Tiedjen’s defense counsel deposed Murphy, who
was bedridden, on September 14, 2017. In this deposition, Murphy stated that he did not
recall Tiedjen’s case, nor did he recall the victim, McGary. Asked if he recognized his
affidavit, which he signed approximately two months prior to the deposition, Murphy replied, “No, not really. I’m just reading it.” Asked if he recalled the events that he
described in the affidavit, Murphy replied, “No. I don’t remember this, you know.” The
colloquy continues:
A: Whatever’s in there is the truth.
Q: But you don’t recall this?
A: No. Not now I don’t, no.
Q: And when you signed this on July 16th of 2017, you didn’t recall it back then either, did you? * * *
A: What’s today?
Q: Today is September 14th.
A: Yeah, okay.
Q: So two months ago —
A: Yeah. All right.
Q: Two months ago, you signed this affidavit?
A: Right, yeah.
Q: And you read it over, but you don’t recall —
A: I read it over, but — I signed my name to it, yeah.
Q: And you didn’t recall these events as you read it over?
A: No.
{¶40} Tiedjen next attempted to introduce the testimony of an expert crime scene
reconstructionist to show that the newly discovered photographs were exculpatory in
nature. It is at this juncture that it becomes clear the court was proceeding under an incorrect standard. The state objected to this testimony, arguing that it was premature,
because the only motion before the court was a motion for leave. In ruling on the
admissibility of this expert’s testimony, the trial court outlined the following standard
under which it was considering the motion for leave:
Well, first I have to decide, was it given to his lawyers or not? I have to determine that issue. Then I have to determine, is it exculpatory? And then I have to determine that lack of that information does it rise to the level of giving him leave?
I don’t see how this testimony is relevant. * * *
So I don’t disregard him. I think he’s a very talented man. I just don’t think this is the right spot for this testimony.
He’s not allowed to show me it’s exculpatory. Right? That’s my job, to decide if it’s exculpatory. It’s your job to argue that it is. It’s their job to argue that it’s not. Then I can make a legal decision on that.
An expert’s only brought into a case to help the fact finder on issues with which they’re not familiar and are not within their realm of knowledge. I think I can make a decision on what’s exculpatory evidence.
What is new and did it deprive him of a fair trial. That’s all we need to talk about right now.
V. Analysis
A. Commingled Consideration: Motion for Leave and Motion for New Trial
{¶41} In State v. Gaven, 10th Dist. Franklin No. 16AP-645, 2017-Ohio-5524, the
appellate court held that the trial court failed to separate the defendant’s motion for leave and his motion for a new trial. “Specifically, the trial court’s analysis improperly
‘conflates two distinct issues’ by resolving the motion for leave based on the merits of
whether the appellant is entitled to a new trial rather than addressing the threshold issue
of whether appellant was unavoidably prevented from discovering new evidence.” Id. at
¶ 20, quoting State v. McConnell, 170 Ohio App.3d 800, 2007-Ohio-1181, 869 N.E.2d
77, ¶ 20 (2d Dist.).
{¶42} The instant case is similar to Gaven in that the court, as well as the parties,
at times treated Tiedjen’s motion for leave as a motion for a new trial. The court (1)
found that the photographs were “newly discovered evidence under Crim.R. 33”; (2) was
silent on the issue of whether Tiedjen was unavoidably prevented from discovering them;
(3) found that the expert crime scene reconstructionist’s testimony was not “newly
discovered” and was irrelevant to whether the photographs were material or exculpatory;
and (4) denied Tiedjen leave to file a motion for new trial.
{¶43} Chaplin was the only person to testify who had a firsthand recollection of
the 1989 trial, and he testified that the state showed him ten photographs, all of which
were introduced at trial. Chaplin further testified that he did not know any other
photographs existed. Dever was unable to testify about anything relating to this case
specifically. Murphy testified in deposition that he had no recollection of this case or
anything that was in his affidavit for that matter.
{¶44} The police reports allegedly indicate that more than ten photographs were
taken, but these reports are missing and are not part of the record on appeal. Furthermore, the reports allegedly indicate that 68 crime-scene photographs were taken.
This number is inconsistent with the 86 or 87 photographs that were introduced into
evidence at the 2017 hearings. Additionally, although discovery in 1989 criminal cases
was not as open as it is today, due process required then, just as it requires now, that the
state provide defendants with exculpatory evidence.
{¶45} Upon review, we agree with the trial court that the photographs were “newly
discovered” under Crim.R. 33. However, we further find that Tiedjen was unavoidably
prevented from discovering them within 120 days from his conviction. Simply put, the
photographs existed at the time of Tiedjen’s trial, he was justifiably ignorant of this fact,
and the photographs were in the exclusive control of the police, the prosecutor, or both.
There was no reason to suspect that 76 additional photographs were withheld and every
reason to rely on the state sharing all of its evidence against Tiedjen. Although none of
Tiedjen’s assigned errors raise the issue of leave to file a motion for a new trial, this issue
was discussed at oral arguments. Accordingly, the court erred by denying Tiedjen’s
motion for leave to file a motion for new trial.
{¶46} We additionally conclude that it is impossible to determine whether the trial
court abused its discretion in finding the photographs were “not material under Civ.R. 33
or exculpatory under Brady.” There is no evidence to support the trial court’s decision,
and without this evidence, we are unable to review Tiedjen’s first and second assigned
errors. The trial court’s denial of Tiedjen’s motion for leave is reversed. Case
remanded for either: (1) a hearing under State v. Jones, 71 Ohio St.3d 293, 643 N.E.2d 547 (1994), to determine whether Tiedjen is substantially responsible if the evidence is
still missing; or (2) a full hearing on Tiedjen’s motion for a new trial if the evidence is
located.
B. Limiting the Expert Witness’s Testimony
{¶47} We also agree with the trial court that Tiedjen’s expert witness’s testimony
is not “newly discovered evidence.” However, that is not what Tiedjen was essentially
arguing at the 2017 hearings. Tiedjen’s expert was called to testify, ideally in relation to
a motion for a new trial rather than a motion for leave, as to the exculpatory and material
value of the suppressed photographs. It was an abuse of discretion for the court to
exclude this testimony when ruling on whether the photographs were exculpatory and
material. The value of the newly discovered evidence goes to the merits of Tiedjen’s
right to a new trial rather than whether he should be granted leave.
{¶48} Whether the newly discovered crime scene photographs are exculpatory or
material to the defense may turn on expert testimony in certain situations. The
accusations in the case at hand are that the police or the state manipulated the crime scene
and withheld exculpatory photographs. Tiedjen may choose to offer expert testimony to
explain how these photographs were allegedly exculpatory.
Finally, we note the [fact-finder] is not required to give any additional weight to the opinion of an expert, if any weight at all. Rather, an expert’s opinion is admissible, as is any other testimony, to aid the trier of fact in arriving at a correct determination of the issues being litigated. Expert testimony is permitted to supplement the decision-making process of the ‘fact finder’ not to supplant it. Doss v. Smith, 8th Dist. Cuyahoga No. 72672, 1998 Ohio App. LEXIS 2853 (June 25,
1998).
{¶49} Upon review, we find that the court abused its discretion by limiting the
expert’s testimony to the extent that it related to whether the newly discovered evidence
was material and exculpatory. Tiedjen’s third assigned error is sustained.
C. Res Judicata
{¶50} Given our determination that the missing photographs constitute newly
discovered evidence that Tiedjen was unavoidably prevented from raising in the trial
court or on direct appeal, we also find that his 30-year-old due process claim is not barred
by the doctrine of res judicata. See State v. Reid, 2d Dist. Montgomery No. 24672,
2012-Ohio-1659, ¶ 10, citing State v. Davis, 131 Ohio St.3d 1, 2011-Ohio-5028, 959
N.E.2d 516 (“res judicata would not bar a post-appeal motion for a new trial based upon
newly discovered evidence”).
VI. Sanctions for Falsified and Inaccurate Evidence
{¶51} Tiedjen argues that the state attempted to submit false testimony in the form
of Murphy’s affidavit. Given our disposition of this case, we decline to address
Tiedjen’s fourth assigned error. See App.R. 12(A)(1)(c).
{¶52} Judgment reversed and case remanded for proceedings consistent with this
opinion.
It is ordered that appellant recover of appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate be sent to the Cuyahoga County Court of
Common Pleas 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.
PATRICIA ANN BLACKMON, JUDGE
MARY EILEEN KILBANE, A.J., CONCURS; SEAN C. GALLAGHER, J., DISSENTS. SEE ATTACHED DISSENTING OPINION
SEAN C. GALLAGHER, J., DISSENTING:
{¶53} I respectfully dissent. The trial court did not abuse its discretion, and
the fact that the 76 photographs entered into evidence are now missing is concerning, but
not a basis for reversal. Tiedjen admits to having received the disputed photographs in
2014. No motion for leave to file a delayed motion for a new trial was then filed. In
2015, Tiedjen hired an investigator who spoke with the victim’s ex-girlfriend and
confirmed what was depicted in the missing photographs. Still Tiedjen waited. It was
not until October 2016 that the motion at issue was filed, two years after the initial
“discovery” of the new evidence upon which the motion rested. That alone
demonstrates that a reversal is not warranted in this case. State v. Bryan, 8th Dist. Cuyahoga No. 105774, 2018-Ohio-1190, ¶ 8 (a year from the discovery of “new
evidence” exceeds the reasonable time to file a motion for leave to seek a delayed motion
for new trial). Tiedjen’s motion was not timely.
{¶54} Nevertheless, the majority concludes that the missing 76 photos are
necessary to the resolution of this appeal and remands for the purpose of determining
who’s at fault for the missing trial record. This is unnecessary. We are reviewing the
denial of a motion for leave to file a delayed motion for new trial under Crim.R. 33,
which is reviewed for an abuse of discretion. State v. Hale, 8th Dist. Cuyahoga No.
107782, 2019-Ohio-1890, ¶ 7, citing State v. Washington, 8th Dist. Cuyahoga No.
103875, 2016-Ohio-5329, ¶ 16; State v. Gilbert, 8th Dist. Cuyahoga No. 106358,
2018-Ohio-3789, ¶ 25.
{¶55} Tiedjen, in his motion, described a handful of the relevant photographs out
of the 76 he then possessed. He explained in detail the basis of his claim that they
constituted newly discovered, exculpatory evidence. The trial court conducted a
hearing, the transcript of which is in the record, and the court explained its decision
denying relief including references to the relevant photographs. The relevant
photographs were also described in detail during the hearing. Although it is concerning
that the admitted evidence is missing, even if we had the photographs in the record, we
would not be reviewing those to render any independent conclusions. Our sole task is to
determine whether the trial court abused its discretion in denying Tiedjen’s motion for leave to file a delayed motion for new trial. The record, although incomplete, is
sufficient to enable appellate review.
{¶56} On this point, and although the majority remands to determine whether
the evidence is truly lost, it is also concluded that if the photographs were to be found,
that a full hearing on a delayed motion for new trial must occur. The majority renders a
conclusion as to the merits of this appeal notwithstanding the missing evidence. Thus,
any claim that the missing evidence is necessary to the current appeal is misplaced.
{¶57} With respect to the merits, and notwithstanding the untimeliness of the
motion for leave, the trial court’s decision should be affirmed.
{¶58} In his motion, and again in the appellate briefing, Tiedjen claims the
photographs he obtained in 2014 demonstrate that the crime scene was staged and that
another person may have been present the night of the murder. It is important to note
that the original trial photographs were not considered during the hearing on Tiedjen’s
motion — it is unclear from the record whether the original trial photos were available.
The trial defense attorney testified from his recollection and based on the description of
the images that could be pieced together from the original trial transcript.
{¶59} According to Tiedjen, the “newly discovered” photographs demonstrated
that the victim’s ex-girlfriend was present on the night of the murder because the photos
depicted a purse and a leather jacket. Nothing demonstrates when those items were left
in the victim and Tiedjen’s apartment. Tiedjen speculates as to the time frame. The
ex-girlfriend told the investigating detectives that she had not been in the apartment for a couple days. Nevertheless, Tiedjen claims that her presence proved what Tiedjen had
been unable to prove over the decades — that the victim committed suicide by stabbing
himself in the chest and shooting himself in the head with Tiedjen’s small-caliber rifle,
with the fatal shot being fired over two-feet from the victim. In further support, Tiedjen
claims that another set of relevant photographs depicts a cloth “wrapping” on the victim’s
hands. According to Tiedjen, this explains the lack of gunshot residue on the victim’s
hands. And finally, there were pictures depicting similar-looking eyeglasses in different
locations, which, again according to Tiedjen’s belief, conclusively demonstrates the
staging of the crime-scene photos. There is no dispute, however, that the photographs
were created on different days and there is no evidence that Tiedjen had only one set of
eyeglasses.
{¶60} Most important, Tiedjen was present and personally saw the crime scene
the morning after the murder — he lived in the same apartment and he found the victim’s
body. Tiedjen has not further explained how he was unaware of the details of the crime
scene in light of the trial evidence:
Jeffrey Fleming testified that John Tiedjen came to his house on West 32nd
Street on the morning of April 1. Mr. Tiedjen was shaken up and told
Fleming that he thought his brother Brian had killed himself with the .22
caliber rifle. Later in the day, Fleming and Tiedjen drove to the home of
another mutual friend, Bob Pack. When Tiedjen arrived at Pack’s home,
Tiedjen gave Pack a .32 caliber revolver and told him to get rid of it. Further, Tiedjen told Pack that Brian committed suicide as he was upset
over a girl. While at that house, Mr. Tiedjen made several phone calls to his
mother and told Pack that he had found his brother's body and thought he
had killed himself. Alice Tiedjen, the natural mother of John Tiedjen,
testified that her son told her that he was drunk and could not remember
how Brian had been shot. She notified the police to respond to the
apartment on East 57th Street and turned her son into the police. She
testified to an incident one week before the homicide in which Brian and
John had argued.
However, on April 4, 1989, the defendant gave a written statement to
Detective Murphy. He then told the detective that he and his brother had
returned home after drinking and became involved in an argument in the
living room. Tiedjen claimed that Brian went to get a pistol and that he
grabbed a knife from a table. The two struggled over the knife and Brian
was stabbed in the chest. The defendant told Brian that he had enough.
Tiedjen went into the bedroom where he heard two gunshots. He grabbed
his .22 caliber rifle and went into the hallway, where Brian confronted him
with a pistol. He believed Brian was about to shoot him, so he fired one
shot at his brother. Brian fell back and Tiedjen returned to his bedroom to
sleep. When he woke up the next morning, he found Brian by the bed with the .22 caliber rifle laying over his feet.
State v. Tiedjen, 8th Dist. Cuyahoga No. 57996, 1991 Ohio App. LEXIS 547, at 4-7 (Feb.
7, 1991). Tiedjen would have been aware of how the crime scene looked the morning
after the murder. The subject matter of the photographs is not new. See, e.g., State v.
Howard, 8th Dist. Cuyahoga No. 101359, 2015-Ohio-2854, ¶ 53-54; State v. Crenshaw,
11th Dist. Lake No. 2011-L-166, 2012-Ohio-5928, ¶ 70.
{¶61} Further, Tiedjen was not unavoidably prevented from discovering the
photographs within 120 days of trial. The trial court came to the same conclusion and
concluded that the photographs were known to the defense at the time of trial and thus
could have been timely discovered. Although the prosecutor testified that he could not
specifically recall the case, he testified to his customary practice, which included the
disclosure. Evidently, the trial court placed more credibility with the state’s witnesses
than the defense’s. Thus, there is credible evidence in the record that the defense was
aware of the photographs and could have attempted to procure them without having to
wait almost three decades. In resolving the conflicting testimony, I would defer to the
trial court’s determination. Tiedjen has not demonstrated that he was unavoidably
unable to discover the photographs in a timely fashion as contemplated under Crim.R. 33.
{¶62} For these reasons, I dissent. The trial court did not abuse its discretion in
denying the motion for leave to file a delayed motion for new trial 30 years after the
original conviction and more than two years from when the supposed “new evidence” was
procurred by the defendant. I would affirm.