[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Bonnell, Slip Opinion No. 2018-Ohio-4069.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.


                          SLIP OPINION NO. 2018-OHIO-4069
            THE STATE OF OHIO, APPELLEE, v. BONNELL, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
      may be cited as State v. Bonnell, Slip Opinion No. 2018-Ohio-4069.]
Criminal law—Postconviction DNA testing—Appellant failed to demonstrate that
        results of testing of any evidence he sought to have tested could be outcome
        determinative—This court lacks jurisdiction to consider matters relating to
        adequacy of prosecution’s search for biological material that could be
        tested—Trial court’s denial of application for testing affirmed.
    (No. 2017-1360—Submitted August 1, 2018—Decided October 10, 2018.)
            APPEAL from the Cuyahoga County Court of Common Pleas,
                                  No. CR-87-223820-ZA.
                                    _________________
        O’DONNELL, J.
        {¶ 1} Melvin Bonnell appeals from the denial of his second application for
DNA testing, following his conviction and death sentence for the 1987 murder of
Robert Eugene Bunner. He presents two propositions of law for our consideration.
We lack jurisdiction to consider the first proposition of law and conclude that
                            SUPREME COURT OF OHIO




Bonnell has failed to show any of the evidence he sought to have tested could be
outcome determinative. Accordingly, we affirm the judgment of the trial court.
                     Factual and Procedural Background
                     Bonnell’s conviction and direct appeals
       {¶ 2} A Cuyahoga County grand jury indicted Bonnell on two counts of
aggravated murder (R.C. 2903.01), each with firearm and aggravated-burglary
specifications; one count of aggravated burglary (R.C. 2911.11), with firearm and
prior-offender specifications; and one count of possessing a weapon under
disability (R.C. 2923.13) with specifications. In our decision on Bonnell’s direct
appeal, we summarized the facts of the case:


              Shirley Hatch, Edward Birmingham and Robert Eugene
       Bunner shared an apartment on Bridge Avenue in Cleveland, Ohio.
       On November 28, 1987, at approximately 3:00 a.m., Hatch heard
       someone knock at the kitchen door of the apartment. Hatch asked
       who was at the door and a voice replied, “Charles.” Bunner opened
       the door and appellant, Melvin Bonnell, entered the apartment and
       closed the door behind him. Appellant uttered an expletive directed
       at Bunner and then proceeded to fire two gunshots at Bunner at close
       range. Bunner fell to the floor and Hatch, who had witnessed the
       shooting, ran to a bedroom where Birmingham was sleeping. Hatch
       heard two more gunshots, awoke Birmingham to tell him that
       Bunner had been shot, and then fled from the apartment to call
       paramedics. Birmingham went to the kitchen.
              Upon entering the kitchen, Birmingham observed appellant
       who was on top of Bunner “* * * pounding him in the face.”
       Birmingham also observed bullet holes in Bunner’s body.
       Birmingham grabbed appellant and ejected him from the apartment.




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                         January Term, 2018




       At approximately 3:40 a.m., two Cleveland police officers
were patrolling Bridge Avenue in a police cruiser when they
observed a blue vehicle being driven backwards on Bridge Avenue
with its headlights off. The officers attempted to stop the vehicle,
and a high-speed chase ensued when the driver of the vehicle failed
to stop. During the chase, the officers never lost sight of the vehicle
except, perhaps, for a few seconds. The officers never saw anyone
in the vehicle except the driver. No one exited the vehicle during
the chase. The chase ended when the driver of the blue vehicle
crashed into the side of a funeral chapel. The officers removed the
driver from the vehicle and placed him on the ground. Both officers
identified appellant as the driver of the vehicle.
       Shortly after the accident, Cleveland police officers Stansic
and Kukula arrived at the crash site and saw a man lying on the
ground with police officers standing over him. However, officers
Stansic and Kukula left the accident scene almost immediately
thereafter in response to a radio call regarding the shooting at the
Bridge Avenue apartment.
       Upon arriving at the apartment, officers Stansic and Kukula
interviewed Hatch and Birmingham who provided the officers with
a description of Bunner’s assailant. The officers recognized the
witnesses’ description as meeting the description of the man they
had observed at the accident scene. The officers asked Birmingham
to accompany them to the hospital where the man had been
transported following the accident. At the hospital, Birmingham
identified appellant as Bunner’s assailant.
       Bunner died as a result of a gunshot wound to the chest. An
autopsy revealed that Bunner was shot twice, once in the chest and




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       once in the pubic region. Both bullets were recovered from the
       body.
               Police officers retraced the chase scene and found a .25
       caliber automatic pistol which was later identified as appellant’s.
       The weapon was test-fired and the test bullets were compared to the
       bullets found in Bunner’s body. The test bullets and the bullets
       retrieved from Bunner’s body had the same characteristics, and test
       casings matched spent bullet casings found at the murder scene.


(Ellipsis sic.) State v. Bonnell, 61 Ohio St.3d 179, 179-180, 573 N.E.2d 1082 (1991).
       {¶ 3} On March 3, 1988, a jury found Bonnell guilty of aggravated burglary
and two counts of aggravated murder with specifications, and it recommended a
sentence of death, which the trial court imposed.
       {¶ 4} The Eighth District Court of Appeals affirmed in part. It sustained
Bonnell’s convictions for aggravated burglary and aggravated murder, held that the
two aggravated murder counts should have been merged for sentencing purposes, but
determined that error was harmless, and also vacated Bonnell’s prison sentence for
aggravated burglary because the record did not demonstrate that he was present in court
when it was imposed, but remanded for a new sentencing hearing on that count. 8th
Dist. Cuyahoga No. 55927, 1989 Ohio App. LEXIS 4982 (Oct. 5, 1989).
       {¶ 5} In a separate entry, the court of appeals affirmed the capital sentence.
1989 Ohio App. LEXIS 5028 (Oct. 5, 1989). On further appeal, we affirmed the
aggravated murder conviction and capital sentence, finding the evidence of guilt to be
“overwhelming.” 61 Ohio St.3d at 183, 573 N.E.2d 1082.
                             Petitions for collateral relief
       {¶ 6} On March 16, 1995, Bonnell filed a 53-count petition for postconviction
relief. He alleged that the state violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct.
1194, 10 L.Ed.2d 215 (1963), by withholding police and lab reports containing




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                                 January Term, 2018




material, favorable information. Moreover, Bonnell alleged that the state failed to
preserve blood evidence found on the back porch and the stairs leading up to the
porch. He also asserted that his rights were violated because the state never tested
physical evidence, including vomit found in the kitchen near the body, fingerprints
at the scene, Bonnell’s hands, the contents of his automobile, or his pants.
          {¶ 7} The trial court denied the petition, but the Eighth District Court of
Appeals sua sponte remanded “for clarification as to whether or not the trial court
reviewed the original trial transcript.” 8th Dist. Cuyahoga No. 69835 (July 12,
1996). In 1997, the trial court again denied the postconviction petition, and the
court of appeals affirmed. 8th Dist. Cuyahoga Nos. 69835 and 73177, 1998 Ohio
App. LEXIS 3943 (Aug. 27, 1998). The appeals court deemed the statements in
the police reports to be either “immaterial” or “minor inconsistencies.” Id. at *13-
14. We declined to exercise jurisdiction. 84 Ohio St.3d 1469, 704 N.E.2d 578
(1999).
          {¶ 8} In 2000, Bonnell filed a petition for a writ of habeas corpus in the
United States District Court for the Northern District of Ohio. The federal court
agreed with the Eighth District that any inconsistent statements in police interviews
that had not been turned over to the defense were, for the most part, immaterial,
Bonnell v. Mitchel, 301 F.Supp.2d 698, 728-729 (N.D.Ohio 2004), and the Sixth
Circuit Court of Appeals affirmed, 212 Fed.Appx. 517 (6th Cir.2007). In its
opinion, the appellate court observed that the failure to disclose a negative gunshot-
residue test was harmless because the state did not claim to have found residue on
Bonnell’s clothes, and thus, the defense was able to and did argue that the jury could
assume the tests on Bonnell’s hands were negative. Id. at 522-523.
                          Initial application for DNA testing
          {¶ 9} On October 29, 2004, Bonnell submitted his first application for DNA
testing. He requested testing of four items:




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        [1]      vomit found in kitchen,
        [2]      Blood from [his] vehicle,
        [3]      hair on green pillow, [and]
        [4]      Plastic bags for Gun Shot residue.


In addition, his memorandum in support requested testing of the blood recovered
from the rear steps, railings, and stairwell, as well as swabs or slides taken from
Bonnell’s own hands.
        {¶ 10} After five extensions of time, the state responded to the application
on August 30, 2005. The state argued, among other things, that the application
should be denied because “no parent sample[1] exists with which to do a DNA
comparison.” The trial court accepted the state’s representations, and denied the
petition on October 21, 2005.
                                     The instant appeal
        {¶ 11} After the General Assembly enacted a new DNA-testing statute,
Bonnell filed a new application for DNA testing with the trial court on February 6,
2008. In his second application, Bonnell requested DNA testing of:


        [1]      swabs and slides of blood recovered from the crime scene;
        [2]      swabs and slides of blood recovered from [his] hands, jacket and
        other clothes;
        [3]      vomit found in kitchen;
        [4]      blood from [his] vehicle;
        [5]      hair on green pillow;
        [6]      plastic bags for gunshot residue; [and]


1
  The term “parent sample” means “the biological material first obtained from a crime scene or a
victim of an offense * * * and from which a sample will be presently taken to do a DNA comparison
to the DNA of the subject offender.” R.C. 2953.71(M).




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                               January Term, 2018




       [7]     1 or 2 guns recovered by Cleveland police.


On April 23, 2008, the state informed the court that it had located Bonnell’s jacket
in the Eighth District Clerk’s files, and it agreed to DNA testing. The parties then
submitted a joint motion for DNA testing of the jacket, which the court granted.
       {¶ 12} The state filed the results of the DNA testing on July 7, 2009, which
concluded that DNA samples taken from multiple locations on the jacket came from
a male donor, and that Bonnell could be excluded as a contributor. Five samples,
however, were consistent with the DNA profile of Bunner. With respect to two
samples, obtained from the right upper sleeve and right lower back, the report noted
that the probability of selecting a random, unrelated person from the population
having the same partial DNA profile was 1 in 239,000 individuals.
       {¶ 13} The remainder of Bonnell’s second application lay dormant for years
until, on April 26, 2017, he filed a motion to compel the state to provide an
accounting of the physical evidence from the case. In response, the prosecuting
attorney submitted a report, including an affidavit from Christopher D. Schroeder,
on June 15, 2017, detailing his efforts to locate evidence from the trial. Those
efforts included personally searching and/or arranging for searches of the
prosecutor’s property room, the office of the Cuyahoga County Clerk of Courts, the
Cleveland Police department property room, the “dead files” section of the Eighth
District Court of Appeals, the Bureau of Criminal Investigation, the Cuyahoga
County Medical Examiner’s Office, and the Western Reserve Historical Society
(which sometimes receives items from old cases). Schroeder spoke with multiple
former prosecutors, including the lead prosecutor at trial and a member of the
appellate team, as well as investigating police officers and at least one assistant
attorney general. He also tried to speak with the court reporter who transcribed the
trial, but she was deceased.




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       {¶ 14} Schroeder’s investigation revealed that the Medical Examiner’s
Office still had possession of 7 autopsy microslides, 4 swabs from Bonnell’s jacket,
and 1 swab from an autopsy microslide, as well as the jacket itself. The lead
prosecutor signed out the murder weapon, pellets, and cartridge case on “February
18, 1987 [sic, 1988]” and never returned them. The .25 caliber shell casings had
also been signed out, but the name was illegible. A second weapon seized during
the investigation, but not connected to the crime, had been destroyed. Other items,
including the pillow, had been sent from the police property room to the coroner in
November 1987 but never returned.
       {¶ 15} On August 14, 2017, the trial court denied the second application,
for two reasons. First, relying on Schroeder’s affidavit, the court determined that
no parent sample of any biological material still exists for testing, other than the
jacket that has already been tested. The court’s judgment specifically noted that
the Schroeder affidavit satisfied all the statutory requirements and demonstrated
that the search had been adequate.
       {¶ 16} Second, even if any biological material did exist, the trial court
concluded that Bonnell “cannot show that any additional DNA testing would be
outcome-determinative.” According to the court, the evidence of guilt presented at
trial, including the eyewitness testimony of Hatch and Birmingham, the testimony
that the car chase began near the victim’s apartment shortly after the shooting,
Birmingham’s identification of Bonnell as the shooter, the discovery of the murder
weapon along the route of the car chase, and the ski jacket in Bonnell’s car that
matched the description of the shooter’s jacket, was overwhelming. Coupled with
the 2009 DNA test that showed Bunner’s blood on the jacket, the trial court found
that “Bonnell’s case does not present this Court with a plausible claim of actual
innocence.”
       {¶ 17} Bonnell appealed that decision.




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                                January Term, 2018




                                 Law and Analysis
       {¶ 18} If an eligible offender submits an application for DNA testing under
R.C. 2953.73, the prosecuting attorney must use “reasonable diligence” to
determine whether (1) biological material was collected from the crime scene or
victim against which a sample from the offender may be compared, and (2) whether
the parent sample of that biological material still exists. R.C. 2953.75(A). In
exercising that diligence, the prosecuting attorney must rely on “all relevant
sources,” including but not limited to (1) all prosecuting authorities involved in the
case, (2) all law enforcement involved in the investigation, (3) all custodial agencies
involved at any time with the biological material, (4) the custodians of the custodial
agencies, (5) all crime laboratories involved at any time with the biological
material, and (6) all other “reasonable sources.” Id. The prosecuting attorney must
prepare and file a report containing the required determinations. R.C. 2953.75(B).
       {¶ 19} A court may accept an R.C. 2953.73 application for DNA testing
only if it determines that six conditions apply, two of which are central to this
appeal. First, the court must determine that biological material was collected from
the crime scene or the victim and that the parent sample still exists.            R.C.
2953.74(C)(1). And second, a trial court may accept a DNA application only if it
determines that “if DNA testing is conducted and an exclusion result is obtained,
the exclusion result would be outcome determinative.” R.C. 2953.74(C)(4). In its
current form, the Revised Code defines “outcome determinative” to mean that, had
the testing been presented at trial and admitted into evidence, when considered
alongside the other evidence in the case, “there is a strong probability that no
reasonable factfinder would have found the offender guilty of [the] offense or, if
the offender was sentenced to death relative to that offense, would have found the
offender guilty of the aggravating circumstance or circumstances the offender was
found guilty of committing and that is or are the basis of that sentence of death.”
R.C. 2953.71(L).




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          Determination that testing would not be outcome determinative
       {¶ 20} In this second proposition of law, Bonnell contends that the trial
court erred in its determination that he was not entitled to DNA testing (assuming
any materials exist for testing) because the results would not be outcome
determinative. For example, on the night of the murder, Bonnell was bar-hopping
with a friend named Joseph Egnor, a.k.a. Joseph Popil. Bonnell has suggested that
Popil may have been the actual shooter. Popil owned a red jacket with the words
“Devil’s Den” on the back. In his reply brief, Bonnell suggests that if testing of
Popil’s jacket revealed the victim’s blood, that result would be outcome
determinative. But Bonnell’s application did not include a request to test Popil’s
jacket, and that matter is not before us.
       {¶ 21} As for the items he did ask to have tested, we recognize that DNA
testing would not have changed the outcome of the trial. According to Bonnell, a
DNA test of his jacket would be strong evidence of his innocence if it detected no
trace of the victim’s blood. According to Birmingham, the shooter crouched over
Bunner after shooting him and punched him repeatedly. It stands to reason that the
assailant would have Bunner’s blood on his clothing. Therefore, Bonnell suggests,
DNA testing of his clothes that failed to detect the victim’s blood would make it
obvious that he could not have committed the crime. But the state’s forensic
witness testified at trial that Bunner’s blood was not on the jacket, so Bonnell
already had the opportunity to argue his innocence based on the absence of blood
evidence. Despite this evidence, the jury convicted him. A new test would not
strengthen his innocence claim. (The parties disagree over whether the detection
of Bunner’s blood on the jacket in 2009 resulted from more sophisticated testing
methods (the state’s position) or improper storage and cross-contamination
(Bonnell’s position), but that argument is ultimately not relevant, because the 2009
test results were not presented to the jury.)




                                            10
                                January Term, 2018




       {¶ 22} The same is true with respect to evidence recovered from Bonnell’s
hands and his car: the jury convicted him despite the state’s inability to show
gunshot residue on his hands or blood in his car.
       {¶ 23} The second DNA application also mentions a hair supposedly found
on a green pillow that was recovered from the scene. Trial testimony indicated that
the pillow had Bunner’s blood on it. The state ultimately withdrew it as an exhibit and
it was never offered into evidence. After trial, it was revealed that the investigating
officers found the pillow on the back porch, not inside the apartment, as had been
assumed at trial. But even assuming a DNA test proved that the hair did not belong
to Bonnell, it is unclear how this would be exculpatory, much less outcome
determinative.
       {¶ 24} Bonnell’s claim that vomit may be outcome determinative is not well
taken. There is no evidence in the record to suggest that the vomit was ever
collected or stored, and therefore, it cannot be outcome determinative.
       {¶ 25} Bonnell devotes the bulk of his brief to arguing what he believes to
be the weakness of the evidence against him, based largely on evidence disclosed
postconviction. But he fails to show that DNA testing, if performed, would yield a
result that would be outcome determinative. We therefore reject this second
proposition of law.
                                    Due process
       {¶ 26} In his first proposition of law, Bonnell asserts a due-process right to
challenge in the trial court the adequacy of the state’s search for the evidence. We
note that our appellate jurisdiction exists by virtue of R.C. 2953.72(A)(8), which
provides in relevant part that a capitally sentenced defendant may “appeal the
rejection” of an application for DNA testing to the supreme court, and that “no
determination otherwise made by the court of common pleas in the exercise of its
discretion regarding the eligibility of an offender or regarding postconviction DNA
testing under these provisions is reviewable by or appealable to any court.” By its




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plain terms, the statute limits our jurisdiction to a determination of whether or not
to grant DNA testing.      We therefore cannot consider matters relating to the
adequacy of the state’s search for evidence.
                                    Conclusion
        {¶ 27} Because the statute limits our jurisdiction to reviewing the denial of
DNA testing by a trial court, we lack jurisdiction to entertain the first proposition
of law. With respect to the second proposition of law, Bonnell has failed to
demonstrate any of the evidence he sought to test could be outcome determinative
and therefore, this proposition is overruled. Accordingly, we affirm the judgment
of the trial court.
                                                                Judgment affirmed.
        O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DEWINE, and
DEGENARO, JJ., concur.
                               _________________
        Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and
Christopher D. Schroeder, Assistant Prosecuting Attorney, for appellee.
        Timothy Young, Ohio Public Defender, and Kimberly S. Rigby and Kandra
Roberts, Assistant Public Defenders, for appellant.
                               _________________




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