[Cite as State v. Jalowiec, 2015-Ohio-5042.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

STATE OF OHIO                                        C.A. No.       14CA010548

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
STANLEY E. JALOWIEC                                  COURT OF COMMON PLEAS
                                                     COUNTY OF LORAIN, OHIO
        Appellant                                    CASE No.   95CR046840

                                  DECISION AND JOURNAL ENTRY

Dated: December 7, 2015



        MOORE, Judge.

        {¶1}     Appellant, Stanley Jalowiec, appeals an order that denied his motion for a new

trial. This Court affirms.

                                                I.

        {¶2}     In 1996, a jury found Mr. Jalowiec guilty of aggravated murder in connection

with the death Ronald Lally, and on the jury’s recommendation, the trial court sentenced him to

death. This Court affirmed. State v. Jalowiec, 9th Dist. Lorain No. 96CA006445, 1998 WL

178554 (Apr. 15, 1998). The Ohio Supreme Court affirmed as well. State v. Jalowiec, 91 Ohio

St.3d 220 (2001), cert. denied, 534 U.S. 964 (2001). While his direct appeal was pending, Mr.

Jalowiec petitioned the trial court for postconviction relief, followed by three amended petitions.

The trial court treated his third amended petition as a successive petition and dismissed it. This

Court affirmed. State v. Jalowiec, 9th Dist. Lorain Nos. 01CA007844, 01CA007847, 2002 WL

358637 (Mar. 6, 2002), appeal not allowed, 96 Ohio St.3d 1439, 2002-Ohio-3344.
                                                  2


       {¶3}    Mr. Jalowiec also petitioned the federal district court for a writ of habeas corpus

in 2003. During the course of discovery, previously undisclosed evidence came to light, and in

2005, Mr. Jalowiec filed an amended petition. The amended petition alleged, in the twentieth

claim for relief, that Mr. Jalowiec “was denied his rights to a fair trial, due process of law, and to

be free from cruel and unusual punishment, as guaranteed by the Fifth, Sixth, Eighth, and

Fourteenth Amendments to the United States Constitution, when the state withheld favorable and

exculpatory * * * materials.” Jalowiec v. Bradshaw, N.D.Ohio No. 1:03 CV 0645, 2008 WL

312655, *16 (Jan. 31, 2008). The district court determined that the allegations in Mr. Jalowiec’s

twentieth ground for relief were procedurally defaulted because Ohio courts had enforced a state

procedural bar with respect to one basis for relief and, with respect to the others, Mr. Jalowiec

had failed to present them for adjudication in Ohio courts. Id. at *33. Nonetheless, the district

court considered the merits of the procedurally defaulted claims “in an effort to promote judicial

efficiency and preserve judicial resources.” Id. at *50. In so doing, the district court concluded

that Mr. Jalowiec’s twentieth ground for relief was without merit in its entirety. Id. at *66-73.

Mr. Jalowiec appealed to the U.S. Sixth Circuit Court of Appeals.

       {¶4}    On May 28, 2008, Mr. Jalowiec also filed a pro se motion for leave to file a

delayed motion for a new trial based on newly discovered evidence. The trial court granted

leave, and Mr. Jalowiec filed that motion on June 4, 2008. The State responded. In the

meantime, Mr. Jalowiec’s appeal moved forward in the Sixth Circuit. Oral argument was heard

on June 9, 2010. The Sixth Circuit issued its final opinion in the case on November 23, 2011. In

response to Mr. Jalowiec’s argument that his failure to exhaust should have been excused by the

district court, the Sixth Circuit concluded that the nondisclosure of evidence resulted in good

cause for the procedural default, but that the nondisclosure did not result in prejudice such that
                                                3


Mr. Jalowiec was entitled to a stay while his motion for a new trial was litigated in state court.

Jalowiec v. Bradshaw, 657 F.3d 293, 305 (6th Cir.2011).           In so doing, the Sixth Circuit

undertook a de novo review, considering each allegation in the twentieth claim for relief

individually and collectively. Id. at 305-314. The Sixth Circuit affirmed the district court’s

denial of the twentieth claim for relief, concluding that he had failed to show that “the

undisclosed impeachment evidence is sufficiently ‘material’ to warrant habeas relief.” Id. at 314.

       {¶5}    About one month after the Sixth Circuit issued that decision, Mr. Jalowiec moved

the trial court for leave to file an amended motion for a new trial. The trial court granted leave,

and Mr. Jalowiec filed an amended motion on June 28, 2012. The trial court conducted a hearing

on the motion and considered the matter submitted upon the filing of posthearing briefs. The

trial court denied Mr. Jalowiec’s motion for a new trial on January 29, 2014, and this appeal

followed.

                                                II.

       {¶6}    Because Mr. Jalowiec’s motion for a new trial hinged on the materiality of newly

discovered evidence, we begin by setting forth the evidence that resulted in his conviction.

       {¶7}    On January 19, 1994, the body of an unidentified man was found along a road

inside a Cleveland cemetery. Police noted that the previous night had been one of the coldest

recorded in Cleveland, yet the victim was found shirtless, his upper garments lying along the

road in a snow bank. There were blood stains on the road with tire tracks running through them.

According to the coroner, the victim had multiple abrasions to his face and split lips from blows

to the mouth. He had received multiple blows to the head, and his neck bore scrapes that were

“deep” and “impressive.” Another “broad area of parallel scrapes” were evident on his chest and

abdomen. The coroner ruled that the man died as a result of three factors: a gunshot wound to
                                               4


the head, which would not have been fatal on its own; multiple blows to the head; and exposure

to extremely cold temperatures. About three weeks later, the deceased was identified as Ron

Lally.

         {¶8}   In 1993, Mr. Lally had agreed to purchase drugs from Danny Smith as a

confidential informant for the Elyria Police Department. As a result of the purchase, Danny

Smith and his father Raymond were charged with drug offenses. Danny was scheduled to go to

trial on January 19, 1994. Officer John Homoki testified that in September 1993, he responded

to a disturbance call initiated by Mr. Lally, who complained that “these guys” had threatened

him. Officer Homoki recalled that Danny Smith said at the time, “That snitch will get his.”

Officer Homoki also saw Mr. Jalowiec walking away from the disturbance as he arrived on

scene. Mr. Lally’s fiancé, Sandra Williams, also recalled that Mr. Lally had been threatened by

Danny Smith.

         {¶9}   Witness Lynne Altpater testified that around the same time, Danny Smith asked

her whether she could get him some poison because “he said he needed [it] to take care of

somebody” who was going to testify against him. Terry Hopkins, a school acquaintance of

Danny Smith, testified that he agreed to help Smith “[b]eat somebody up,” but that when Smith

later approached him because he “wanted somebody killed,” he declined. Instead, he arranged

for Smith to meet Carl Hartman. Hartman also testified, and he recalled that in the fall of 1993,

Danny Smith asked him if he would take money in exchange for making sure that Mr. Lally did

not testify. Hartman refused, but recalled that Smith said that “he had somebody that could do it

for him[.]” He remembered that Smith mentioned someone named “Stan,” but did not use a last

name.
                                                 5


         {¶10} The night before Danny and Raymond Smith were scheduled to go to trial on the

drug charges, they went drinking with some of their acquaintances. Terry Hopkins testified that

he was drinking with Danny Smith and Danny’s girlfriend Tammy, his own girlfriend, and his

sister, Sharon Hopkins. According to his testimony, the group went to a diner when the bars

closed for the night, and he returned to his sister’s apartment not long after that without Danny

Smith.

         {¶11} Sharon Hopkins also testified, but she recalled that she stayed behind at the diner

when her brother left with his girlfriend. Sharon testified that Raymond Smith, Danny Smith,

and Danny’s brother Michael were all present. She also recalled that Mr. Jalowiec was present

“[h]ere and there” during the evening with Danny, but that by the time the bars closed, Mr.

Jalowiec was gone.      She stated that she left with Danny Smith, who was her ride home.

Raymond and Michael were also in the car, but according to her testimony, Danny dropped them

off on Middle Avenue. Danny then pulled into a parking lot in the woods and waited until a

convertible drove past. Sharon recalled that the convertible drove back and forth a few times

before Danny followed it out of town and signaled for it to pull over. According to Sharon,

Danny “ducked down” in the car and told her to get out and ask the driver if they had picked up

his brother Michael. Sharon complied. She identified the driver as Mr. Jalowiec and recalled

that there were other people in the car that she could not identify. Sharon got back in the car, and

Danny Smith drove her home.

         {¶12} Joann Fike (also known by the name “Corinne Fike”) testified that she knew

Danny and Raymond Smith as a result of their involvement with drugs. Fike owned a 1992

Chrysler LeBaron convertible, which she had loaned to Danny on occasion in exchange for drugs

that he provided. Fike also owned a dog, whose hair was collected for analysis by the Elyria
                                                6


police department in connection with Mr. Lally’s murder. Fike’s nephew, Brian Howington,

testified that he used Fike’s convertible on the night in question. Howington recalled that he was

drinking with Mr. Jalowiec that evening before the two picked Mr. Lally up and went back to

Fike’s house. Howington testified that Mr. Jalowiec received a page, then asked to borrow

Fike’s convertible and left with Mr. Lally around 1:00. He returned the car around 5:00 a.m.

with Raymond Smith, and the car was “frozen, covered with ice” as though it had been washed.

        {¶13} Michael Smith, who is the son of Raymond Smith and brother of Danny Smith,

implicated his father and Mr. Jalowiec directly in the murder of Mr. Lally and, indirectly,

implicated Danny in the scheme that led up to Mr. Lally’s death. Michael testified that he was

out on the night of January 18, 1994, and met up with his father and brother at a diner. He left

the diner with Raymond, Danny, and Danny’s girlfriend, Tammy, in Danny’s car. Michael

recalled that Danny dropped him and Raymond off, and they waited until Mr. Jalowiec picked

them up in a Chrysler LeBaron. Mr. Lally was a passenger in the car as well. Michael recalled

that as they drove, Raymond threatened Mr. Lally because he had set Danny up, but said that

“We are going to give you some money, get you a bus ticket, you are going to get out of town.”

Michael testified that instead, Raymond gave Mr. Jalowiec instructions to drive into Woodland

Cemetery, where he and Mr. Lally got out of the car. According to Michael, Raymond pointed a

gun at Mr. Lally’s face and said, “You will never snitch on nobody again[.]” Michael heard a

gunshot and heard Mr. Lally exclaim, “You shot me in my head, you shot me in my head” before

pleading for his life.

        {¶14} At that point, Michael recalled that Raymond told Mr. Jalowiec to get out of the

car and a scuffle ensued. Michael testified that at one point, Mr. Jalowiec opened the door and

retrieved a knife. Silence followed, then according to Michael, he heard the trunk open and
                                                7


heard Mr. Jalowiec say, “He ain’t going to fit, he ain’t going to fit, he is too stiff[.]” Michael

recalled that Raymond and Mr. Jalowiec got back into the car and that Mr. Jalowiec backed the

car into something three times. Mr. Lally did not get back into the car. As the men drove away,

Michael recalled that Raymond asked why he had not gotten out of the car to help, then

dismantled his gun and threw it from the window piece by piece.

       {¶15} Terry Hopkins testified that after his sister Sharon got home early on the morning

of January 19th, he returned to Danny Smith’s apartment, where he had been staying. According

to Hopkins’ recollection, Danny was “nervous, real nervous and said he was feeling sick to his

stomach. * * * He said they had done it, they did it.” Hopkins left, then returned the next day to

get his belongings. He recalled that Danny Smith, Raymond Smith, Michael Smith, and Mr.

Jalowiec were all at the apartment talking “[a]bout what they had done to this guy.” Hopkins

testified that he heard Mr. Jalowiec say that “[t]hey stomped him and ran him over with a car,”

and the group talked about shooting and cutting the victim. He recalled that Danny Smith

wanted the victim killed because he had worn a wire during a drug deal. According to Hopkins,

Michael Smith seemed nervous during the conversation.

       {¶16} During the course of their investigation, police examined the Chrysler LeBaron

owned by Joann Fike for evidence. They found human blood on the trunk liner with a DNA

profile that was consistent with Ron Lally, but inconsistent with Raymond Smith, Danny Smith,

and Mr. Jalowiec. Police also found dog hairs in the trunk that matched hairs found on Mr.

Lally’s clothing after his death.

       {¶17} Detective Alan Leiby, who led the investigation into Mr. Lally’s death, also

testified at trial. During his testimony, Detective Leiby acknowledged that every witness in the

State’s case had refused to cooperate at the beginning of his investigation. He also testified that
                                                 8


in exchange for cooperating in the investigation, witnesses Carl Hartman and Terry Hartman

received favorable consideration in criminal cases that were pending against them.                He

acknowledged that he told Brian Howington, a drug user at the time, that he would not be

charged with a drug offense as a result of anything he said during his interview. Detective Leiby

testified that the fact police did not charge Michael Smith with a crime, however, was unrelated

to his cooperation.

       {¶18} Mr. Jalowiec’s attorneys mounted a vigorous defense at trial, honing in on three

specific aspects of the State’s case: numerous prior inconsistent statements by witnesses, the

favorable treatment provided to some witnesses in the context of their own criminal cases, and

the fact that many witnesses were under the influence of drugs and alcohol on the night of the

murder.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN DENYING JALOWIEC A NEW TRIAL
       AFTER A PARTIAL EVIDENTIARY HEARING[.]

       {¶19} Mr. Jalowiec’s first assignment of error argues that the trial court erred by failing

to conduct a full hearing on his motion for a new trial and by issuing a decision that did not

explain the basis for denying his motion in detail. We disagree.

       {¶20} Crim.R. 33(A)(6) provides that a new trial may be granted “[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.” By its terms, Crim.R. 33 does not require a hearing

on a motion for a new trial, and this Court has consistently held that the decision to conduct a

hearing is one that is entrusted to the discretion of the trial court. State v. Smith, 30 Ohio App.3d

138, 139 (9th Dist.1986). When this Court reviews a decision for an abuse of discretion, we

consider whether the trial court’s decision is unreasonable, arbitrary, or unconscionable. State v.
                                                  9


Penix, 9th Dist. Summit No. 23699, 2008-Ohio-1051, ¶ 34, citing Blakemore v. Blakemore, 5

Ohio St.3d 217, 219 (1983).

       {¶21} In this case, the trial court conducted a hearing, but Mr. Jalowiec objects to the

scope of the hearing that the trial court conducted.         Specifically, the trial court held its

proceedings in two stages. In the first, the court heard arguments from counsel about the

evidence that Mr. Jalowiec identified in his motion for a new trial, focusing specifically on

determining which items of evidence had been previously considered during the federal habeas

proceedings. In the second stage, the trial court heard evidence from the witnesses that had been

so identified. After the hearing, the trial court permitted the parties to file closing briefs on the

merits of the case. Given the procedural posture of this case and the fact that Mr. Jalowiec’s

motion for a new trial acknowledged that much of the newly discovered evidence upon which he

relied had been previously analyzed by the federal courts in connection with his habeas petition,

we cannot conclude that the trial court abused its discretion by structuring the hearings in this

way.

       {¶22} Mr. Jalowiec has also argued that the trial court’s written decision that denied his

motion for a new trial is insufficient because it did not explain its ruling in adequate detail. It is

well-settled, however, that a trial court is under no duty to issue a written decision that contains

findings of fact and conclusions of law when it rules on a motion under Crim.R. 33. State ex rel.

Collins v. Pokorny, 86 Ohio St.3d 70 (1999).

       {¶23} The trial court did not abuse its discretion in its conduct of the hearing in this

matter, nor was it obligated to include findings of fact and conclusions of law in its order

denying Mr. Jalowiec’s motion for a new trial. Mr. Jalowiec’s first assignment of error is

overruled.
                                                10


                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED IN DENYING JALOWIEC A NEW TRIAL
       WHERE    HE   PRESENTED   SUBSTANTIAL  NEW   EVIDENCE
       DEMONSTRATING THAT POLICE AND PROSECUTORS VIOLATED HIS
       RIGHTS UNDER BRADY V. MARYLAND.

                                ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED IN DENYING JALOWIEC A NEW TRIAL
       WHERE HE PRESENTED MATERIAL NEW EVIDENCE OF HIS
       INNOCENCE THAT WOULD CHANGE THE RESULT ON RETRIAL[.]

                                ASSIGNMENT OF ERROR IV

       THE TRIAL COURT VIOLATED JALOWIEC’S EIGHTH AND
       FOURT[E]ENTH AMENDMENT RIGHTS BECAUSE HE FACES A
       SENTENCE OF DEATH FOR A CRIME OF WHICH HE IS ACTUALLY
       INNOCENT.

       {¶24} Mr. Jalowiec’s second, third, and fourth assignments of error argue that the trial

court erred by denying his motion for a new trial by concluding that many of his arguments were

barred by res judicata and by concluding that he had not established prejudice sufficient to

warrant granting a new trial. With respect to the latter argument, Mr. Jalowiec alleges that some

evidence is newly discovered because it was not disclosed by the State before trial. With respect

to all of the evidence, whether allegedly undisclosed or otherwise newly discovered, Mr.

Jalowiec argues that it demonstrates that he is actually innocent.

       {¶25} A threshold issue concerns the trial court’s application of res judicata to evidence

previously considered by the federal courts in connection with Mr. Jalowiec’s petition for habeas

corpus. Mr. Jalowiec has argued that the trial court erred in doing so because “[t]he evidence

considered in federal court was strikingly different from what Jalowiec was [sic] presented in his

[motion for a new trial].” We disagree.

       {¶26} Mr. Jalowiec’s motion for a new trial concedes that some evidence upon which he

relies was previously considered by the federal courts. Among this material, Mr. Jalowiec
                                               11


pointed to evidence that, according to him, implicates Danny Smith in the murder and evidence

that demonstrates that the State exerted improper influence over witnesses. With respect to

Danny Smith’s involvement, Mr. Jalowiec points to a witness statement by a woman named

Melissa Arroyo in 1995, in which she told police that Danny Smith admitted participating in a

murder; a letter written by a Robert Quillen, who claimed that Danny Smith admitted that he

killed “the snitch”; Danny Smith’s own opinion, expressed to police officers, that he did not

think Mr. Jalowiec was capable of murder; a letter from Raymond Smith to Danny Smith from

the year 2000 (after Raymond was convicted and Danny was acquitted) that urged Danny to tell

the truth about his involvement; and an allegation that an informant placed in Mr. Jalowiec’s

prison cell with a recorder failed to come away with any inculpatory statements.

       {¶27} According to Mr. Jalowiec, other evidence implies that witnesses were influenced

to testify against Mr. Jalowiec because they received favorable treatment in their own criminal

cases. This included Lynne Altpater, who claimed that her husband received favorable treatment

in a drug case; Terry Hopkins, who received shock probation; Brian Howington, who was

granted immunity in connection with his testimony and who, according to Mr. Jalowiec, was

influenced by his aunt with respect to the content of his testimony; Joann Fike, whose testimony

Mr. Jalowiec surmises, despite the lack of supporting evidence, to have been the result of

improper influence by Detective Leiby; and Michael Smith, whose testimony Mr. Jalowiec

guesses may have been the result of favorable treatment.

       {¶28} In the course of determining whether Mr. Jalowiec’s procedural default should be

excused and whether federal appellate proceedings should be stayed, the federal courts

considered all of this evidence and concluded that the Brady standard had not been met.
                                                 12


Jalowiec, 2008 WL 312655, at *66-73; Jalowiec, 657 F.3d at 302-314. More specifically, the

Sixth Circuit Court of Appeals concluded:

       In reaching this conclusion, we hold that Jalowiec has not shown such prejudice
       as to render the unexhausted part of his Brady claim sufficiently meritorious to
       warrant a stay pending completion of his state court exhaustion efforts. Further,
       on de novo review of the merits of the claim, we hold that Jalowiec has not shown
       that the undisclosed impeachment evidence is sufficiently “material” to warrant
       habeas relief.

Id. at 313-314.

       {¶29} Res judicata encompasses both claim preclusion and issue preclusion. State ex

rel. Nickoli v. Erie MetroParks, 124 Ohio St.3d 449, 2010-Ohio-606, ¶ 21. With respect to issue

preclusion, application of res judicata “serves to prevent relitigation of any fact or point that was

determined by a court of competent jurisdiction in a previous action between the same parties[.]”

O’Nesti v. DeBartolo Realty Corp., 113 Ohio St.3d 59, 2007-Ohio-1102, ¶ 7, citing Ft. Frye

Teachers Assn., OEA/NEA v. State Emp. Relations Bd., 81 Ohio St.3d 392, 395 (1998). Two

issues are the same for purposes of issue preclusion when the same evidence will sustain both.

Ft. Frye at 396, citing Norwood v. McDonald, 142 Ohio St. 299 (1943), paragraph four of the

syllabus.

       {¶30} Mr. Jalowiec moved for a new trial under Crim.R. 33(A)(6), which requires a

defendant to demonstrate that new 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 (1947), syllabus. Crim.R. 33 does not contemplate a motion for

a new trial on grounds of evidence demonstrating “actual innocence” apart from the grounds set
                                               13


forth in Crim.R. 33(A)(6), so a motion based on the premise must demonstrate the strong

probability that newly discovered evidence would have led to a verdict of not guilty.

       {¶31} A defendant who argues that exculpatory evidence was wrongfully withheld by

the State in violation of the Due Process Clause, on the other hand, must demonstrate the

suppression of favorable evidence that is material to guilt or punishment. Brady v. Maryland,

373 U.S. 83, 87 (1963). “There are three components of a true Brady violation: The evidence at

issue must be favorable to the accused, either because it is exculpatory, or because it is

impeaching; that evidence must have been suppressed by the State, either willfully or

inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-282

(1999). Undisclosed evidence is “material” when “there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have been different.”

U.S. v. Bagley, 473 U.S. 667, 682 (1976).

       {¶32} When a due process violation is alleged in within the framework of Crim.R.

33(A)(6), the defendant maintains that evidence is “newly discovered” by virtue of it having

been suppressed before trial. Because the standard for materiality under Brady and its progeny is

lower than that required by Crim.R. 33(A)(6) and Petro, that analysis is dispositive. See State v.

Baker, 12th Dist. Clinton No. CA2000-08-018, 2001 WL 1218888, *6 (Oct. 15, 2001).

       {¶33} Thus, the critical issue in both the federal habeas proceedings and the proceedings

related to Mr. Jalowiec’s motion for a new trial is whether the new evidence at issue would have

changed the result of Mr. Jalowiec’s trial. With respect to the evidence presented during the

habeas proceedings, the federal courts considered the issue of materiality under Brady and

concluded that the evidence would not have changed the outcome.            As noted above, this

threshold of materiality is lower than that required by Crim.R. 33(A)(6). Consequently, it
                                               14


presents the same issue for purposes of issue preclusion, and res judicata prohibits Mr. Jalowiec

from arguing the motion based on the same evidence in this case.

       {¶34} Nonetheless, Mr. Jalowiec also argues that his motion is based on evidence that

was discovered since the federal habeas proceedings and that based on that evidence, alone and

in conjunction with the previously discovered evidence, he is entitled to a new trial. We

disagree.

       {¶35} Some of this allegedly newly discovered evidence is essentially a restatement of

the evidence that the federal courts considered and rejected. The affidavit of Jeff Buteau

reiterated the suppositions from his earlier affidavit that Joann Fike, received assistance from

Detective Leiby and coached Brian Howington regarding his statement to police. Danny Smith’s

affidavit repeated his speculation that Mr. Jalowiec would not have killed someone and the

allegation that his brother, Michael Smith, was given immunity and financial assistance from the

State in exchange for cooperating with the prosecution. The affidavits of Ditanvia Deiger and

Gerald Mielcarek, who had no connection to the events at issue, reiterated the same allegations.

Like Danny Smith, Richard Altpater speculated that Mr. Jalowiec could not kill someone. A

new affidavit from Melissa Arroyo, whose statement to police was considered during the habeas

proceedings, appears at first glance to offer new evidence, but upon closer examination of the

record, it fails to do so. When Ms. Arroyo testified at the hearing on Mr. Jalowiec’s motion for a

new trial, she admitted that she did not read her affidavit before signing it and recanted much of

it. The testimony that she provided contradicted her affidavit and was consistent with the

statement already considered by the federal courts.
                                                15


       {¶36} All of this evidence is redundant and bears on the same issues resolved by the

federal courts. As such, res judicata applies in this proceeding, and the trial court did not err in

reaching this conclusion.

       {¶37} With respect to the rest of the evidence that Mr. Jalowiec has advanced in support

of his motion for a new trial – and to all of the evidence collectively – we also conclude that the

trial court did not err in denying the motion. “The decision whether to grant a new trial on

grounds of newly discovered evidence falls within the sound discretion of the trial court.” State

v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, ¶85, citing State v. Hawkins, 66 Ohio St.3d 339,

350 (1993). When a Brady violation is framed in terms of Crim.R. 33(A)(6), an appellate court

still reviews the determination for an abuse of discretion. See generally LeMar at ¶ 85.

       {¶38} Crim.R. 33(A)(6) permits a new trial to be ordered when “new evidence material

to the defense is discovered which the defendant could not with reasonable diligence have

discovered and produced at the trial.” In order to establish that new evidence warrants a new trial

under Crim.R. 33(A)(6), a movant must establish that the new 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.

Petro, 148 Ohio St. 505 at syllabus. Evidence that impeaches or contradicts the evidence at trial

is not excluded from consideration per se, but the character of that evidence is relevant to

whether a different result is a strong probability. State v. Cureton, 9th Dist. Medina Nos.

03CA0009-M, 03CA0010-M, 2003-Ohio-6010, ¶ 19, quoting Dayton v. Martin, 43 Ohio App.3d

87 (2d. Dist.1987), syllabus. The nature of the evidence is a significant consideration:

       In singling out impeaching or contradicting evidence, Petro recognized that the
       nature of such evidence requires that a trial court exercise circumspection in
                                                16


       determining whether newly discovered evidence of that character would create a
       strong probability of a different result, because such evidence quite often will not
       be likely to change the outcome.

Martin at 90.

       {¶39} In this case, the trial court did not abuse its discretion by denying Mr. Jalowiec’s

motion for a new trial because some of the remaining evidence is not “newly discovered” and the

rest does not demonstrate a strong probability of a different result at trial. This remaining

evidence can be grouped into four categories: evidence that attempts to impeach the credibility of

trial witnesses, expert testimony that attempts to cast doubt on the State’s case, general criticism

of the Elyria Police Department, and evidence that purports to bear on Mr. Jalowiec’s innocence.

       {¶40} Exhibits 57-60 contain affidavits of Mr. Jalowiec’s immediate family members

that date to 1998. These affidavits claim that family members were with Mr. Jalowiec on the

night of Ron Lally’s murder. Exhibit 1 is the affidavit of Mr. Jalowiec himself, in which he

claims that he was a confidential informant for the Elyria Police Department at the time of the

murder.   Mr. Jalowiec could have discovered this evidence with reasonable diligence and,

accordingly, it cannot support a motion for a new trial.

       {¶41} The affidavits of Tammy Lasinis, fka Tammy Castro, Danny Smith, and Richard

Altpater attempt to impeach the credibility of trial witnesses. Ms. Lasinis was Danny Smith’s

girlfriend at the time of the murder. In her affidavit, she maintains that she was working the

night that Mr. Lally died; that Danny Smith borrowed Joann Fike’s car in exchange for drugs;

and that she has no idea who killed Ron Lally. To the extent that Ms. Lasinis claims that she was

working the night of the murder, her affidavit contradicts the trial testimony of Terry Hopkins

and Sharon Hopkins, both of whom claimed that she was among the group that went drinking

that evening. Mr. Jalowiec’s motion for a new trial articulates the significance of her affidavit as
                                                17


follows: “If these witnesses were wrong about [her] being in Elyria that night, they can be no less

wrong about seeing Jalowiec in the LeBaron.” This is purely speculative. Ms. Lasinis, Danny

Smith, and Richard Altpater each maintain that on occasion, Danny exchanged drugs with Joann

Fike in exchange for the use of her car. Ms. Fike herself testified to this fact at trial, however,

and it falls far short of establishing that anyone other than Mr. Jalowiec borrowed the car on the

night of the murder.

       {¶42} Like the statement of Robert Quillen that was considered by the federal courts

during the habeas proceedings, the affidavit of inmate Wilbur Jeffrey Lewis maintains that while

Mr. Lewis was incarcerated with Raymond and Danny Smith, they confessed to the murder of

Ron Lally, but never implicated Mr. Jalowiec, who maintained his innocence. That Mr. Jalowiec

maintains his innocence is unsurprising, and that Danny and Raymond implicated themselves is

equally so. The State’s theory of the case, after all, was that Danny planned the murder while

Raymond and Mr. Jalowiec carried it out. In other words, Mr. Quillen’s statements are not

material to Mr. Jalowiec’s defense.

       {¶43} The final items at issue are three affidavits from people with no connection to the

case. The first is the affidavit of Hetzel See, a former Elyria police officer. Mr. See’s affidavit

makes sweeping allegations against the police and the then-prosecutor, but he acknowledged at

the hearing that he had no involvement in the investigation of Mr. Lally’s murder. At best, Mr.

See’s affidavit is speculative. It has virtually no evidentiary value in the context of Crim.R.

33(A)(6).

       {¶44} The second and third exhibits contain reports authored by experts retained by Mr.

Jalowiec’s defense. Gary A. Rini, whose report is Exhibit 3 in support of Mr. Jalowiec’s motion

for a new trial, opined that it would be difficult for four adult males to ride in Joann Fike’s 1994
                                                18


Chrysler LeBaron; that Mr. Lally died at the scene where the body was later found; and that there

was no forensic evidence of “crushing wounds” caused by a vehicle running over Mr. Lally’s

body. In an affidavit marked as Exhibit 53, Dr. Leroy Riddick opined that Mr. Lally was beaten

before being shot, that he could not have said, “You shot me in the head” after being shot, and

that the coroner miscalculated the time of Mr. Lally’s death. Dr. Riddick agreed that Mr. Lally

had been beaten and that his injuries were consistent with being struck by an automobile. These

exhibits are offered in an attempt to contradict the testimony of trial witnesses Michael Smith,

who testified about the events that he heard from the LeBaron on the night of the murder, and Dr.

Heather Neilson Raaf, who performed the autopsy of Mr. Lally’s body. The inconsistencies

raised by these experts, however, were apparent from the trial court proceedings and were the

subject of cross-examination by Mr. Jalowiec’s attorneys at trial.

       {¶45} The new evidence to which Mr. Jalowiec points consists of speculation and

alleged contradictions that do not create a strong possibility of a different outcome at trial. This

is the case when the evidence is considered individually and collectively and, indeed, when it is

considered in the context even of the evidence to which res judicata applies in these proceedings.

Counsels’ zeal for their client is admirable. But the evidence in the record does not “destroy[]”

the testimony of the State’s key witnesses or “make[] clear that on retrial, no reasonable juror

would conclude that Jalowiec had any role in Lally’s death.” To the contrary, the evidence is

consistent with the State’s theory of the case: Danny Smith conspired with Raymond Smith to

murder Mr. Lally, but left the murder itself to Raymond and Mr. Jalowiec.

       {¶46} The trial court did not abuse its discretion in denying Mr. Jalowiec’s motion for a

new trial. His second, third, and fourth assignments of error are overruled.

                                 ASSIGNMENT OF ERROR V
                                                 19


       THE TRIAL COURT ERRED IN DENYING JALOWIEC A NEW TRIAL
       WHERE HE PRESENTED SUBSTANTIAL NEW EVIDENCE THAT THE
       STATE VIOLATED HIS CONSTITUTIONAL RIGHTS UNDER ARIZONA V.
       YOUNGBLOOD[.]

       {¶47} Mr. Jalowiec’s fifth assignment of error is that the State violated his right to due

process by destroying exculpatory evidence. Specifically, Mr. Jalowiec maintains that there is

“substantial new evidence” that Detective Leiby destroyed tape recordings of interviews in bad

faith. We disagree.

       {¶48} Crim.R. 33(A)(2) provides that a new trial may be granted because of misconduct

by the prosecutor or a witness for the state that materially affects a defendant’s substantial rights.

This inquiry consists of two steps. State v. Heru, 9th Dist. Summit No. 24756, 2010-Ohio-635,

¶2, quoting State v. Herb, 167 Ohio App.3d 333, 2006-Ohio-2412, ¶ 6 (9th Dist.). The first

determination is whether misconduct actually occurred, and the second is whether that

misconduct materially prejudiced the defendant’s substantial rights. Heru at ¶2, quoting Herb at

¶ 6.   With respect to the existence of misconduct, the United States Supreme Court has

recognized that whether or not a defendant makes a specific request for disclosure, the

suppression of exculpatory evidence that is material to guilt or punishment violates due process

without respect to whether the state acted in bad faith. Brady, 373 U.S. at 87. When the state

fails to preserve evidence that is merely “potentially useful,” a defendant must demonstrate that

the state acted in bad faith. Arizona v. Youngblood, 488 U.S. 51, 58 (1988).

       {¶49} As a threshold matter, however, a defendant cannot establish a due process

violation by speculating about the existence, content, and disposition of evidence. See United

States v. Jobson, 102 F.3d 214, 218-219 (6th Cir.1996); Gipson v. Sheldon, N.D.Ohio No. 3:13-

CV-1997, 2015 WL 1980244, *9; United States v. Lusenhop, S.D.Ohio No. 1:14-CR-122, 2015

WL 1487126, *5 (Apr. 1, 2015); Phelps v. Richard, S.D.Ohio No. 1:12-CV-896, 2014 WL
                                               20


1872115, *10-11 (May 8, 2014). Compare United States v. Williams-Davis, 90 F.3d 490, 514

(D.C.Cir.1996) (refusing to infer the existence of Brady material based on speculation). This is

precisely what Mr. Jalowiec has attempted to do. Mr. Jalowiec speculates that because some

witness interviews were tape recorded, all were tape recorded; infers that if all were recorded,

some must have been destroyed; and surmises that if some were destroyed, they must have been

potentially useful. This speculation does not establish misconduct on the part of the State or its

witnesses, and it is therefore not sufficient to entitle Mr. Jalowiec to a new trial under Crim.R.

33(A)(2).

       {¶50} Mr. Jalowiec’s fifth assignment of error is overruled.

                               ASSIGNMENT OF ERROR VI

       THE TRIAL COURT ERRED IN DENYING A NEW TRIAL WHERE
       [JALOWIEC] HAS PRESENTED THE COURT WITH SUBSTANTIAL NEW
       EVIDENCE OF INEFFECTIVE ASSISTANCE OF COUNSEL UNDER
       STRICKLAND AND MARTINEZ[.]

       {¶51} Mr. Jalowiec’s final assignment of error raises two ineffective assistance

arguments. The first is that if this Court determines his claims have no merit because trial

counsel could have discovered the evidence at issue, trial counsel was ineffective. This Court

has determined that his motion for a new trial was properly denied for reasons other than the

performance of trial counsel, so this aspect of Mr. Jalowiec’s sixth assignment of error is moot.

Mr. Jalowiec’s second argument is that he should be granted a new trial because he received

ineffective assistance during the habeas proceedings. This argument fails for two fundamental

reasons. The Sixth Amendment right to counsel extends only as far as direct appeals as of right

in state courts. See generally Halbert v. Michigan, 545 U.S. 605 (2005). The standards for

effective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668 (1984) are

grounded in the guarantees of the Sixth Amendment. Id. at 684-686. These standards do not
                                                21


apply to Mr. Jalowiec’s federal habeas proceedings. Even if they did, however, a direct appeal

from a state court’s denial of a motion for a new trial would not be the proper judicial forum to

consider these arguments.

       {¶52} Mr. Jalowiec’s sixth assignment of error is overruled.




                                                III.

       {¶53} Mr. Jalowiec’s assignments of error are overruled. The judgment of the Lorain

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
                                       22


      Costs taxed to Appellant.




                                            CARLA MOORE
                                            FOR THE COURT



HENSAL, P. J.
CARR, J.
CONCUR.


APPEARANCES:

MICHELE L. BERRY and TARA THOMPSON, Attorneys at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting
Attorney, for Appellee.
