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Supf?E{UIE COURT Ilrohi® NO NO. 87-1674 IN THE SUPREME COURT OF OHIO STATE OF OHIO Plaintiff-Appellee ROMELLBROOM Defendant-Appellant REQUEST TO TAKE JUDICIAL NOTICE OF UNREPORTED JUDICIAL OPINIONS WILLIAM D. MASON Cuyahoga County Prosecutor Matthew E. Meyer (#0075253) Assistant Prosecuting Attomey Counsel for Plaintiff-Appellee 1200 Ontario Street Courts Tower - Justice Center Cleveland, Ohio 44113 (216) 443-7800 (216) 443-7602 fax [email protected] email Counsel for Plaintiff-Appellee S. ADELE SHANK 3380 Tremont Rd., 2°a Floor Columbus, Ohio 43201 I TIMOTHY F. SWEENEY 820 W. Superior Ave. AIJO P '1 rl101l Cleveland, Ohio 44113 CLFRK oF COURT Counsel for Defendant-Appellant SUPf?E{UIE COURT ilrOHI® NO. 87-1674 IN THE SUPREME COURT OF OHIO STATE OF OHIO Plaintiff-Appellee ROMELL BROOM Defendant-Appellant REQUEST TO TAKE JUDICIAL NOTICE OF UNREPORTED JUDICIAL OPINIONS Now comes Cuyahoga County Prosecuting Attorney William D. Mason on behalf of the State of Ohio, by and through his undersigned assistant, and respectfully submits the State's Request to Take Judicial Notice of Unreported Judicial Opinions. The State requests that this Honorable Court take notice of these unreported opinions pursuant to State e,r rel. Everhart v. McIntosh, 115 Ohio St.3d 195, 874 N.E.2d 516, 2007-Ohio-4798, at ¶ 10. The opinions, which are attached hereto, are: 1. Broom v. Mitchell (N.D. Ohio, August 28, 2002), Case No. 1:99 cv 0030, unreported. 2. State v. Larkins (Ohio Ct. Com. P1, Dec. 13, 2002), Cuy. Ct. Comm. P1. CR 166827, unreported. 3. Apanovitch v. Houk (N.D. Ohio, August 14, 2009), Case No. 1:91-cv-02221, unreported I Respectfully submitted, WILLIAM D. MASON Cuyahoga County Prosecuting Attorney r"^--^ foo72^E) ^Sr l^lAiC li^Iatthew E. Meyer (#0075253) Assistant Prosecuting Attomey Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 (216) 443-7821 (216) 443-7602fax [email protected] email CERTIFICATE OF SERVICE A copy of the foregoing Request to Take Judicial Notice of Unreported Judicial Opinions was sent by regular U.S. mail this day of August, 2009 to S. Adele Shank, Esq., 3380 Tremont Rd., 2"d Floor, Columbus, Ohio 43201 and Timothy F. Sweeney, Esq., 820 W. Superior Ave., Suite 430, Cleveland, Ohio 44113. (oo z ;r }AEN) atthew E. Meyer (0075253) Assistant Prosecuting Attorney 2 L E'D IN THE COURT OF COMMON PLEAS I (\ ^ 1 DEC 13 20tl2 GERpLD. E. FUERST a Exx OF COURYS WyODUNTY, OHIO STATE OF OHIO ) CASE NO.: CR166827 & CR212083 ) Plaintiff, ) ) v. ) ) JOURNAL ENTRY Ronald Larkins, ) ) Defendant. ) Christine T. MeMonagle, Judge: The Motion for New Trial filed by Defendant Larkins is granted. Defendant Ronald Larkins moves this court for a new trial based upon exculpatory evidence in the prosecution's possession that was not released to the Defendant until thirteen years (13) after his original trial. That evidence is sufficient to grant the Defendant a new trial (See Brady v. Maryland, 373 U.S. 83 (1963)). The Brady Court set forth a three-part test to evaluate the possibility of a new trial based upon prosecutorial misconduct. First, did the prosecution withhold evidence? Second, is that evidence favorable to the Defendant? Third, is that evidence material to the guilt or punishment of the Defendant? The Court fmds that the Defendant's Brady claim is valid and warrants a new trial. The Defendant received police reports via public records in 1999 that were not included in discovery provided prior to trial. The evidence includes other witnesses and testimony that does not describe the Defendant and throws doubt upon the credibility of the one eyewitness (Henderson) presented at trial. The other witnesses describe a man of varying Rood ^^►.^.. ^lb R^^. 0^ r1 /^- 3- 40OZ--' 3 height, weight, skin color and general appearance. Not only does this description not depict the Defendant accurately, but these accounts differ from one another and that of the one reported eyewitness. The ona witness previously divulged by the prosecution gave differing reports to the police at different times and named the Defendant only after the police told her that the Defendant was know by the nickname, Road Dog. The police statement contradicted what Henderson said and believed prior to the police's suggestion as to the identity of the perpetrator. Finally, the lack of the foregoing evidence materially prejudiced the Defendant and his ability to cross-examine Henderson or call defense witnesses to impeach Henderson's credibility and contradict her testimony. The newly discovered evidence that was within the prosecution's possession at the time of trial does not contradict the defense's case presented at that trial. In fact, the Defendant presented no evidence at trial. The defense cross-examined witnesses without the aid of the exculpatory evidence and presented a closing argument that questioned the identity of the Defendant as the perpetrator. The exculpatory evidence withheld by the prosecution was material to the Defendant's defense as to mistaken ide%ity and warrants a new trial. Date Case 1:91-cv-02221-JRA Document 155 Filed 08/14/09 Page 1 of 23 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION ANTHONY APANOVITCH ) CASE NO. 1:91CV2221 Petitioner, ) ) JUDGE JOHN R. ADAMS v. ) ) MARC C. HOUK, WARDEN, ) MEMORANDUM OF OPINION AND ORDER Respondent. ) On December 14, 1984, Petitioner Anthony Apanovitch ("Petitioner" or "Apanovitch"), was convicted of one count of aggravated murder in violation of Ohio Revised Code ("R.C.") § 2903.01, one court of aggravated burglary in violation of R.C. § 2911.11, and two counts of rape in violation of R.C. § 2907.02. Mary Anne Flynn was the victim of Apanovitch's crimes. Apanovitch was subsequently sentenced to death and 45 to 47 years of imprisonment. On November 1, 1991, he filed a Petition for Writ of Habeas Corpus (Doc. 1) pursuant to 28 U.S.C. § 2254 in the United States District Court for the Northern District of Ohio. On July 28, 1993, the district court dismissed the Petition. (Doc. 48). Subsequently, on December 28, 1993, Petitioner's and the Respondent Marc C. Houk's ("Respondent"or "State") Motions to Alter Judgment were -1- Case 1:91-cv-02221-JRA Document 155 Filed 08/14/09 Page 2 of 23 denied. (Doc. 55). Petitioner filed his appeal from the district court's decision on January 26, 1994. (Doc. 57). The Sixth Circuit Court of Appeals, on October 19, 2006, remanded the action for further adjudication as to Petitioner's claim under Brady v. Maryland, 373 U.S. 83 (1963), and the Respondent's DNA request. Apanovitch v. Houk, 466 F.3d 460 (6th Cir. 2006). Per instructions from the Sixth Circuit, this Court ordered DNA testing. On February 26, 2009, a hearing was held on the admissibility of the DNA evidence. The matter now appears before the Court for adjudication. I.FACTS The following facts were taken from the opinion of the Ohio Supreme Court. State v. Apanovitch, 33 Ohio St.3d 19, 19-20 (1987). On August 23, 1984, after visiting family members, Mary Ann Flynn left to return home. At approximately 10:00 p.m., a neighbor saw Flynn get out of her car and walk toward the back door of her residence. Flynn owned a duplex on Archwood Road in Cleveland, Ohio, and was living in one portion of the unit while renting the other. Within minutes of Flynn's exiting her car, her tenants and their guests heard a door slam in Flynn's half of the unit. At midnight, they heard a loud bang or thud. One person heard a high pitched noise between 11:30 p.m. and midnight. Thereafter, everything was quiet. The following day a co-worker and friend, Christine Schenk, became concenred when Flynn failed to report for work at 4:00 p.m. at the Cleveland Metropolitan General Hospital, where she was employed as a nurse and midwife. Schenk telephoned Flynn's brother and together they gained access to Flynn's apartment through the tenants' side of the basement. Martin Flynn discovered the body of his sister in her second floor bedroom. Schenk, who was also a nurse, checked to see if Flynn was alive, and when it was determincd that she was not, the police were summoned. The decedent was discovered lying face down on a mattress with her hands bound behind her back. What appeared to be a rolled-up bedsheet was tied around her neck and also tied to the headboard of the bed. The cause ofdeath was determined to be asphyxia by cervical compression. Sperm was found in the victim's mouth and vagina. There were wood chips and slivers on the body consistent with pieces of wood found in the bedroom. A laceration was -2- Case 1:91-cv-02221-JRA Document 155 Filed 08/14/09 Page 3 of 23 discovered on the back of the neck and slivers of wood were found in this wound. The body was badly beaten and bruised. The time of death was fixed between midnight and 6:00 a.m. The police investigation quickly focused on appellant, Anthony Apanovitch. Apanovitch had painted portions of the exterior of the victim's home, and a copy of the contract for the painting was found on Flynn's kitchen table. He indicated to police that he was familiar with the apartment. Six witnesses testified that Flynn was fearful of Apanovitch, although most of them could only describe him as "the painter" or "a big man" with a "wife that was pregnant." There was conflicting testimony as to what appellant said about the victim. A co-worker, Dawson D.
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