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Supreme Court Reinstates Order Granting New Trials for Gondor, Resh
2005-0329 and 2005-0336. State v. Gondor, 2006-Ohio-6679.
Portage App. No. 2002-P-0073, 2004-Ohio-7219, and Portage App. No. 2002-P-0074, 2004-Ohio-7220. Judgments reversed.
Moyer, C.J., Resnick, Pfeifer, Lundberg Stratton, O'Connor, O'Donnell and Lanzinger, JJ., concur.
Opinion: http://www.supremecourtofohio.gov/rod/newpdf/0/2006/2006-Ohio-6679.pdf
(Dec. 26, 2006) The Supreme Court of Ohio today ordered new trials for two men who were convicted of participating in the 1988 kidnapping, attempted rape and murder of a Portage County woman and have been serving prison sentences for those crimes since their convictions in 1990.
Today's 7-0 decision reversed a ruling of the 11th District Court of Appeals and reinstated an order of postconviction relief issued by the Portage County Court of Common Pleas granting new trials to Robert Gondor and Randy Resh. The trial court order was based on findings that both men were deprived of their constitutional right to a fair trial because they received ineffective assistance from their trial attorneys.
Gondor and Resh were tried separately and convicted of participating in the 1988 kidnapping, attempted rape and murder of Connie Nardi in a rural area of northeast Ohio near Streetsboro. Crucial evidence in both their cases was provided by an alleged co-participant in the crime, Troy Busta, who was the person last seen with Nardi at a bar on the Sunday night she was killed.
Busta testified that Resh and Gondor, who were drinking at the same bar that evening, followed him and Nardi to a remote location where Resh attempted to have sex with Nardi. When she resisted, Busta testified that he and Gondor restrained her, but that Resh wound up beating and strangling her to death when she continued to resist. Busta testified that the trio then transported Nardi's body in the back of Gondor's white pickup truck to a nearby pond, where they disposed of it. Nardi's body was found three days later. Police originally arrested Busta as the primary suspect, but after some time in custody he implicated Resh and Gondor. Busta subsequently entered into a plea bargain with prosecutors that ruled out potential death penalty specifications against him.
While Resh and Gondor denied any involvement in the crime, Busta's version of events was supported by a forensics report that found invisible traces of human protein in the bed of Gondor's truck that a police expert testified was a remnant of blood, although the blood type could not be determined. Other damaging evidence was provided by an employee at a Streetsboro pizza shop, who testified that Resh and Gondor had called and then visited the shop before Nardi's body was discovered and had said it was important that she recall that both Resh and Gondor had called and then come by the shop to pick up a pizza on the previous Sunday night, because they were being investigated for a murder.
In 1990, Resh was convicted of murder and attempted rape. He was sentenced to five to 15 years for attempted rape and 15 years to life for murder, the sentences to be served consecutively. Gondor was convicted of involuntary manslaughter, kidnapping, and obstructing justice. He was sentenced to 10 to 25 years for both involuntary manslaughter and kidnapping, and 18 months for obstructing justice, all sentences to run consecutively.
Both men were unsuccessful in initial efforts to secure postconviction relief based on various alleged constitutional flaws in the conduct of their trials.
In 2002, the trial court conducted an eight-day hearing at which a judge reviewed documents and heard extensive testimony alleging that Gondor and Resh's trial attorneys had failed to discover and make use at trial of vital exculpatory information included in police reports, laboratory test results, witness statements and transcripts of Busta's police interviews that were available in the state's files. At the conclusion of the hearing, the trial court granted Gondor and Resh new trials, finding that effective defense counsel would have discovered and used the exculpatory information to challenge the testimony of Busta and other key prosecution witnesses, and that if the omitted evidence had been presented to jurors, there was a reasonable probability that the outcomes of the defendants' trials would have been different.
The state appealed the trial court's decision. The 11th District Court of Appeals reviewed the trial court's ruling under a “de novo” standard in which the appellate panel conducted its own independent analysis of the evidence and testimony heard during the trial court's postconviction hearing. At the end of its review, the 11th District reversed the trial court and vacated its order granting the defendants new trials. Gondor and Resh sought Supreme Court review of the 11th District's decision, and the Court accepted jurisdiction to hear their appeal.
In today's unanimous decision, authored by Justice Paul E. Pfeifer, the Supreme Court agreed with the defendants' argument that the 11th District erred when it conducted a “de novo” review of the trial court's findings rather than applying a more deferential “abuse of discretion” standard.
“Upon direct appeal, appellate courts generally review ineffective assistance of counsel claims on a de novo basis, simply because the issue originates at the appellate level; no trial court has held forth on the issue,” wrote Justice Pfeifer. “Appellate courts review the trial record and are left to judge from the bare record whether the assistance was effective. On postconviction petitions, however, the trial judge holds a hearing and receives testimony on the very issue of ineffective assistance. … The trial judge can delve into the motivation or reasoning of trial counsel through trial counsel's testimony. The trial judge can ask what the counsel knew, when he knew it, and whether a mistake was not strategic, but was instead careless. As here, in a postconviction hearing, a judge can hear testimony about what evidence was made available to trial counsel and when it was made available. The postconviction judge sees and hears the live postconviction witnesses, and he or she is therefore in a much better position to weigh their credibility than are the appellate judges.”
Finding that “(a) de novo review by appellate courts would relegate the postconviction trial court to a mere testimony-gathering apparatus,” Justice Pfeifer wrote: “Nothing in R.C. 2953.21 indicates that that should be the case. Further, a clean slate on appeal would encourage every petitioner to seek another day in court, which would not benefit the overall administration of justice in Ohio. … We thus conclude that … (t)he Court of Appeals erred by using a de novo standard of review in reversing the trial court's findings. We hold that a trial court's decision granting or denying a postconviction petition filed pursuant to R.C. 2953.21 should be upheld absent an abuse of discretion; a reviewing court should not overrule the trial court's finding on a petition for postconviction relief that is supported by competent and credible evidence.”
Justice Pfeifer noted that the trial court's 11-page opinion granting the defendants' petition for new trials supported that holding by cataloguing specific documents and information that were available in the state's case file that would have supported Gondor and Resh's version of events and/or raised significant doubts about the reliability of the state's witnesses, but were missed by their defense attorneys.
As an example of such exculpatory material, Justice Pfeifer pointed to testimony by Gondor and Resh's trial counsel at the postconviction hearing admitting that they had failed to locate in the state's case file an opinion by a DNA expert that the human protein found in Gondor's truck bed and identified by a police chemist as “blood” residue was instead most likely residue from human perspiration. The trial court also cited trial counsel's failure to make use of meteorological records from the local airport that showed no rain had fallen in Streetsboro from before the date of Nardi's killing until three days after her body was discovered. The court noted that, if presented to the jury, this information would have cast significant doubt on the testimony of the pizza shop employee who recalled that it was raining at the time Gondor and Resh came to the shop to establish their whereabouts at the time of the killing.
“The trial court properly considered the cumulative effect of trial counsels' errors,” Justice Pfeifer wrote. “The trial court properly weighed the credibility of the evidence, properly found that the defendants had set forth sufficient operative facts to obtain postconviction relief, and properly issued sufficient findings of fact and conclusions of law. Accordingly, we conclude that the trial court did not abuse its discretion when it found that Resh and Gondor received ineffective assistance of counsel, vacated the convictions and sentences, and ordered new trials.”
Contacts
Pamela Holder, 330.297.3850, for the
State of Ohio and Portage County prosecutor's office.
Steven L. Bradley, 216.781.0722, for Robert Gondor.
Samuel Porter, 614.227.2046, for Randy Resh.
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