[Cite as State v. Keenan, 2013-Ohio-4029.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99025




                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLANT

                                                vs.

                                 THOMAS M. KEENAN
                                                      DEFENDANT-APPELLEE




                                             JUDGMENT:
                                              AFFIRMED



                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CR-232189

       BEFORE: Jones, P.J., S. Gallagher, J., and McCormack, J.

       RELEASED AND JOURNALIZED: September 19, 2013
ATTORNEYS FOR APPELLANT

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Richard A. Bell
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113


ATTORNEY FOR APPELLEE

Timothy F. Sweeney
Law Office-Timothy Farrell Sweeney
The 820 Building, Suite 430
820 W. Superior Avenue
Cleveland, OH 44113
LARRY A. JONES, SR., P.J.:

      {¶1} Plaintiff-appellant, the state of Ohio, appeals from the trial court’s dismissal

with prejudice of the indictment against defendant-appellee, Thomas Michael Keenan.

We affirm.

                     I. Brief Overview of Pertinent Procedural History

      {¶2} This case dates back to the September 1988 discovery of Anthony Klann’s

body in Doan Creek. 1 Keenan was indicted, along with alleged co-conspirators Joe

D’Ambrosio and Edward Espinoza, in connection with Klann’s death.                   Keenan was

charged with two counts of aggravated murder, one count of kidnapping, and one count of

aggravated burglary. In 1989, a jury returned a guilty verdict on all counts, recommended

Keenan be sentenced to death, and the trial court sentenced him to death. In a subsequent

appeal to the Ohio Supreme Court, the court determined that prosecutorial misconduct

occurred during closing argument, and it vacated the convictions and ordered a new trial.

State v. Keenan, 66 Ohio St.3d 402, 613 N.E.2d 203 (1993).

      {¶3} In 1994, a second trial commenced on the same charges; Keenan was again

convicted and sentenced to death. This court and the Ohio Supreme Court affirmed the

convictions and sentence. State v. Keenan, 8th Dist. Cuyahoga No. 67452, 1996 Ohio

App. LEXIS 3569 (Aug. 22, 1996), aff’d, 81 Ohio St.3d 133, 689 N.E.2d 929 (1998).

       1
         A complete factual history, as adduced by the evidence presented at Keenan’s second trial,
can be found in Keenan v. Bagley, N.D.Ohio No. 1:01 CV 2139, 2012 U.S. Dist. LEXIS 57044 (Apr.
24, 2012), and State v. Keenan, 81 Ohio St.3d 133, 689 N.E.2d 929 (1998).
       {¶4} After exhausting his state remedies, 2 Keenan filed a petition for a writ of

habeas corpus in the United States District Court, Northern District of Ohio. In the

district court, Keenan filed numerous motions to expand the record, primarily to include

documents from D’Ambrosio’s federal habeas and state court retrial proceedings. The

district court allowed the inclusion of these documents in Keenan’s habeas proceeding.

Keenan v. Bagley, at *32-22.

       {¶5} The district court subsequently found that the state suppressed evidence in

violation of its duties under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d

215 (1963), by withholding seven specific categories of evidence. Keenan v. Bagley at

*134. The district court described the Brady violations in Keenan’s case as “serious and

disturbing violations of the State’s constitutional obligation to produce to defendants any

and all exculpatory information in their possession.” Id. The district court referenced the

state’s “stonewalling” for nearly 20 years, id., and noted that Keenan only learned of the

evidence as a result of discovery ordered by the federal court in D’Ambrosio’s habeas

case. Id. at *68 and 83.

       {¶6} The district court concluded that there was a reasonable probability that the

suppressed evidence would have produced a different verdict sufficient to undermine

confidence in the outcome of the trial. Id. at *128-129. The court issued a conditional

writ of habeas corpus, dated April 24, 2012, ordering the state to either set aside Keenan’s


       2
        Additional procedural history is outlined in Keenan v. Bagley, N.D. Ohio No. 1:01 CV 2139,
2012 U.S. Dist. LEXIS 57044 (Apr. 24, 2012).
conviction for aggravated murder and his death sentence, or conduct another trial within

180 days from the date of the order.

       {¶7} The state elected to retry Keenan for Klann’s murder and filed a motion for a

new trial on May 31, 2012. The trial court granted the motion on July 9, 2012, and

vacated Keenan’s convictions.

       {¶8} On July 11, 2012, the state filed notices of intent to (1) introduce Keenan’s

prior testimony under Evid.R. 801(D)(2)(a), (2) introduce prior testimony of deceased

witness Edward Espinoza pursuant to Evid.R. 804(D)(1), and (3) introduce prior testimony

and statements of D’Ambrosio pursuant to Evid.R. 801(D)(2)(e). Keenan filed motions in

opposition to the state’s notices of intent. The trial court conducted a hearing on August

23, 2012, and subsequently ordered that the state could not use any of the prior testimonies

or statements.    On August 29, 2012, the state elected to remove the death penalty

specifications from the indictment.

       {¶9} Meanwhile, on August 8, 2012, Keenan filed a motion to dismiss the

indictment. After the state opposed, the trial court conducted a hearing on August 27,

2012, but held its ruling on the motion in abeyance.

       {¶10} A hearing was set to commence on September 5, 2012, relating to Keenan’s

motion to dismiss, but the court once again held its ruling in abeyance because the parties

were involved in plea discussions.      After a partial plea colloquy, however, Keenan

decided not to plead guilty.

       {¶11} On September 6, 2012, the trial court issued the following order, granting
Keenan’s motion to dismiss with prejudice:

       Pursuant to Criminal Rule 48(B), a hearing on defendant Thomas Michael
       Keenan’s motion to dismiss the indictment with prejudice was held in open
       court on 9/5/12. The court issued [its] findings of fact & conclusions of law
       on the record. The court finds in the interest of justice and fairness, the
       harm done to the defendant Keenan has been so egregious that this is the
       extraordinary case where the court has no other option but to grant the
       motion to dismiss. Defendant’s motion to dismiss the indictment against
       him with prejudice is granted. See Crim.R. 48(B); Criminal Rule 16(L)(1);
       State v. Larkins, 8th Dist. No. 85877, 2006-Ohio-90.

       Defendant Keenan’s request for appellate bond is granted over state’s

       objection. Defendant Keenan’s bond is set [at] $5,000 personal bond with

       court supervised release supervision.      Defendant is to report to CSR

       bi-weekly while this case is pending in the Court of Appeals. Defendant

       ordered released.

       {¶12} The state appealed from this ruling and submits one assignment of error:

       [I.] The trial court erred when it granted the Defendant-Appellee’s Motion
       to Dismiss the Indictment with Prejudice.

                                  II. Law and Analysis

New Trial

       {¶13} The state claims that the district court already sanctioned the state when it

issued the April 24, 2012 conditional writ of habeas corpus ordering the state to either set

aside Keenan’s conviction for aggravated murder and his death sentence, or conduct

another trial within 180 days from the date of the order. The state argues that the trial

court did not follow the district court’s mandate when it sanctioned the state a second time

for the same discovery violation by dismissing Keenan’s indictment with prejudice as this
action was neither setting aside the conviction and sentence nor conducting a new trial.

We find no merit to this argument.

       {¶14} The district court remanded the case to the trial court for further action, and

the state elected to retry Keenan. The decision to go forward with a new trial did not

divest the trial court of its continuing powers of jurisdiction over any further actions of the

parties. See Larkins, 8th Dist. Cuyahoga No. 85877, 2006-Ohio-90, ¶ 58 (Kilbane, J.,

concurring). The trial court was not sanctioning the state a second time for the same

actions or refusing to follow the district court’s mandate.

       {¶15} As this court noted in Larkins at ¶ 32, “Civ.R. 33(D) and R.C. 2945.82

govern the manner in which a new trial is to be conducted.” Civ.R. 33(D) provides that

“[w]hen a new trial is awarded on appeal, the accused shall stand trial upon the charge or

charges of which he was convicted.”       And R.C. 2945.82 provides that “when a new trial

is granted by the trial court * * * the accused shall stand for trial upon the indictment or

information as though there had been no previous trial thereof.”

       {¶16} Consequently, once the district court remanded the case and the state elected

to proceed with a new trial, “matters stood in the same position they did before any trial

had been conducted. It follows that the court possessed all authority to reopen discovery

or entertain any pretrial motions available at law.” Larkins at ¶ 33, 55 (Kilbane, J.,

concurring). Therefore, Keenan was within his rights to file a motion to dismiss and the

trial court could consider said motion.

State v. Darmond
       {¶17} We review the trial court’s decision to grant Keenan’s motion to dismiss with

prejudice for an abuse of discretion.         State v. Darmond, 135 Ohio St.3d 343,

2013-Ohio-966, 986 N.E.2d 971, ¶ 33, citing State v. Parson, 6 Ohio St.3d 442, 445, 453

N.E.2d 689 (1983).

       {¶18} The state submits the trial court failed to consider a less severe sanction than

dismissal with prejudice.

       {¶19} In State v. Darmond, 8th Dist. Cuyahoga Nos. 96373 and 96374,

2011-Ohio-6160, this court held that the “least severe sanction” language from Lakewood

v. Papadelis, 32 Ohio St.3d 1, 511 N.E.2d 1138 (1987), does not apply to cases where

sanctions are imposed on the prosecution.           In Darmond, 135 Ohio St.3d 343,

2013-Ohio-966, 986 N.E.2d 971, the Ohio Supreme Court disagreed and concluded that its

previous holding in Lakewood that

       ‘[a] trial court must inquire into the circumstances surrounding a discovery
       rule violation and, when deciding whether to impose a sanction, must impose
       the least severe sanction that is consistent with the purpose of the rules of
       discovery’ applies equally to discovery violations committed by the state and
       to discovery violations committed by a criminal defendant.

Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, at the syllabus, quoting

Lakewood, paragraph two of the syllabus.

       {¶20} In Lakewood, the court had viewed the trial court’s sanction of excluding the

testimony of the defense witnesses as too severe because it effectively deprived the

defendant of the ability to present a defense. Id. at 4-5. The court concluded that the

trial court should not have imposed the sanction without first considering and rejecting the
feasibility of less severe sanctions. Id. at 5.

       {¶21} In expanding its Lakewood holding, the Darmond court noted that the stated

purpose of the 2010 amendment to Crim.R. 16(A) was to provide for a just determination

of criminal proceedings and to secure the fair, impartial, and speedy administration of

justice; the amended rule “expands the reciprocal duties in the exchange of materials,” and

“balances a defendant’s constitutional rights with the community’s compelling interest in a

thorough, effective, and just prosecution of criminal acts.” Darmond at ¶ 29; Staff Notes

to the 2010 amendment to Division (A) of Crim.R. 16. The Darmond court further

recognized that the current Crim.R. 16(A) applies to “all parties in a criminal case,” and

“all duties and remedies” of the rule are reciprocal and apply “to the defense and the

prosecution equally.” (Emphasis sic.) Id.; Crim.R. 16(A).

       {¶22} In comparing Lakewood to Darmond, the Ohio Supreme Court recognized

the sanction of dismissal with prejudice in Darmond was also “extremely severe” because

it foreclosed the possibility of further prosecution. Darmond at ¶ 30. The court noted

that

       Crim.R. 16’s emphasis on equal and reciprocal treatment of parties clarifies
       that the strong preference expressed in Lakewood for imposing the least
       severe sanction that will further the purposes of the discovery rules is a
       critical consideration that must be taken into account in any criminal case
       before a severe sanction is imposed for a discovery violation.

Darmond at 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 31. A trial court

should not impose the sanction of dismissal with prejudice unless the trial court

specifically weighs and rejects the feasibility of less severe sanctions. Id. at ¶ 30.
          {¶23} That being said, the Darmond court noted that, despite this mandate, the trial

court retains the discretion in determining a sanction for a discovery violation.3 Id. at ¶

33, citing Parson, 6 Ohio St.3d at 445, 453 N.E.2d 689. The 2010 amendments to

Crim.R. 16 did not change this long-standing principle. Darmond at id. The court

stated:

          Crim.R. 16(L)(1) is identical to former Crim.R. 16(E)(3) in detailing a trial
          court’s authority to issue orders in the wake of a party’s failure to comply
          with discovery obligations, and in particular provides that the trial court may
          issue any order “it deems just under the circumstances.”

Id., citing Parson at id.; see also Staff Notes to 2010 amendment to Division (L) of

Crim.R. 16 (“The trial court continues to retain discretion to ensure that the provisions of

the rule are followed. This discretion protects the integrity of the criminal justice process

while protecting the rights of the defendants, witnesses, victims, and society at large.”)

Three-Prong Test

          {¶24} In Parson, the Ohio Supreme Court established a three-prong test governing

a trial court’s exercise of discretion in imposing a sanction for the prosecution’s discovery

violation: (1) whether the failure to disclose was a willful violation of Crim.R. 16; (2)

whether foreknowledge of the undisclosed material would have benefitted the accused in

the preparation of a defense; and (3) whether the accused was prejudiced. Id. at syllabus;

see also State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864.

          {¶25} In Darmond, the Ohio Supreme Court noted that several of the factors


        We, therefore, reject the state’s proposition that a trial court’s legal conclusions in a pretrial
          3

motion to dismiss are subject to a de novo review on appeal.
discussed in Lakewood are similar to the Parson factors. Darmond, 135 Ohio St.3d 343,

2013-Ohio-966, 986 N.E.2d 971, ¶ 36. These factors include the degree of prejudice to

the opposing party and whether the violation was willful or in bad faith.            Id.; see

Lakewood, 32 Ohio St.3d at 5, 511 N.E.2d 1138. The court emphasized that its holding

did not mean that

       a discovery violation committed by the state can never result in the dismissal
       with prejudice of a criminal case. That option remains available when a trial
       court, after considering the factors set forth in Parson and in Lakewood,
       determines that a lesser sanction would not be consistent with the purposes
       of the criminal discovery rules.

Darmond at ¶ 41.

       {¶26} In the present case, the trial court conducted the three-prong analysis set forth

in State v. Wiles, 59 Ohio St.3d 71, 78-79, 571 N.E.2d 97 (1991), which is the same as the

Parson analysis.

       {¶27} In rendering its decision, the trial court stated its findings of fact and

conclusions of law on the record. In pertinent part, the trial court found:

       The first prong is the violation and was the violation willful; the second
       prong is foreknowledge, would foreknowledge have benefitted Mr. Keenan
       or the Defendant; and the third prong is has the Defendant suffered prejudice
       as a result of the State’s failure to disclose the information.

       Applying that test to this case, I’m going to make the following specific
       findings of fact as they pertain to this case:

       As to the first prong, it is without question, based on the egregious history of
       the prosecutorial misconduct and the Brady violations outlined in detail by
       both the Ohio Supreme Court and the Northern District of Ohio in this case
       that the State willfully withheld exculpatory evidence from Keenan and his
       attorneys.
Looking at the second prong, the knowledge of this material prior to trial
would have clearly benefitted Mr. Keenan’s case.

It would have allowed for more effective cross-examination of witnesses,
especially Edward Espinoza, the co-defendant, and the alleged sole
eyewitness to this crime.

The evidence that Paul Lewis had been indicted for the rape of [a male
victim]; that Anthony Klann, the decedent, had some knowledge of this rape,
and that Paul Lewis had never been prosecuted for it[,] would have also been
beneficial for Keenan. This evidence could have strengthened Keenan’s
case by establishing a motive of someone other than Keenan for the murder
of Anthony Klann.

For the same reasons, the evidence that Paul Lewis was the anonymous
caller who called police and identified Anthony Klann as the murder victim,
and had information regarding the murder that was not publicly known could
also have benefitted Mr. Keenan’s case.

The evidence that the initial responding detectives believed the murder to
have occurred somewhere other than Doan’s Creek would have allowed a
more effective questioning of the police investigation, impeachment of
Espinoza, and could have cast doubt on the State’s theory of the case.

The cassette tape that was made by Angelo Crimi that may have implicated
others in the murder would have been obviously beneficial to the Keenan
case. The disclosure of the existence of this tape and its subsequent
disappearance could have held significant impeachment value towards the
impeachment of the police and Edward Espinoza.

James “Lightfoot” Russell’s relocation request could have been used by
Keenan’s defense counsel to question the State of Ohio regarding his
unavailable status in the second trial.

The statements made by the neighbors, Theresa Farinacci, and the older
couple who was not identified, would have strengthened the initial
detective’s conclusion that the murder occurred somewhere else or
somewhere other than Doan’s Creek.

It could have also been used to question the thoroughness of the police
investigation, and Paul Lewis’ involvement in the crime since the statements
were overheard by neighbors near Mr. Lewis’ apartment.
         It is clear to this court that the exculpatory evidence would have
         strengthened and been beneficial to Keenan’s case as outlined in prong two
         [of Wiles, 59 Ohio St.3d at 78-79, 571 N.E.2d 97].4

         Looking at the third prong and final prong, has Keenan suffered severe
         prejudice as a result of the State’s failure to disclose the exculpatory
         evidence.

         Keenan’s case is now 24 years removed from the crime. The witnesses
         would have to testify to detailed issues that took place that long ago,
         including the date and time of this alleged murder which have never been
         decisively established.

         The only alleged eyewitness, Edward Espinoza, is deceased. And his
         testimony is not admissible because he was never able to be cross-examined
         with the newly discovered exculpatory material. Additionally, Keenan was
         never able to use the exculpatory evidence to impeach Espinoza.

         Other witnesses of importance are also deceased, including Detective
         Timothy Horval, Lee Oliver, Angelo Crimi, and James Russell. None of
         whom have been able to be cross-examined or confronted with the
         exculpatory evidence.

         The Keenan case before the court today clearly satisfies the three-prong test
         as outlined by the Ohio Supreme Court case of State v. Wiles. As in
         Larkins, this case is the unique and extraordinary case, that the harm done to
         Mr. Keenan cannot be resolved by a new trial, and this Court is going to
         dismiss this case with prejudice.

         4
          The district court also found this material had significant exculpatory and impeachment
value:

         The State had a clear obligation to reveal the information it possessed concerning
         Lewis’ rape charge, request for assistance from the police and role in the early
         investigation; the initial police theories of where the murder occurred; the statement of
         a former roommate of the victim regarding who was involved in the murder; and the
         statements of wholly disinterested witnesses to activities near Lewis’ apartment on
         Friday night/Saturday morning.

Keenan, N.D. Ohio No. 1:01 CV 2139, 2012 U.S. Dist. LEXIS 57044, *134.
       ***

       Therefore, while the Court is aware that it has an obligation to impose the
       least severe sanction that is consistent with the purposes of the rules of
       discovery, I find that Keenan’s case is the unique and extraordinary case
       where the prejudice created cannot be cured by a new trial.

       {¶28} Again, our review is limited to whether the trial court abused its discretion in

granting Keenan’s motion to dismiss. A trial court abuses its discretion when it makes a

decision that is unreasonable, unconscionable, or arbitrary. State v. Adams, 62 Ohio St.2d

151, 157, 404 N.E.2d 144 (1980). An abuse of discretion includes a situation in which a

trial court did not engage in a “‘sound reasoning process.’” State v. Morris, 132 Ohio

St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 14, quoting AAAA Ents., Inc. v. River

Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597

(1990). An abuse-of-discretion review is deferential, and an appellate court may not

simply substitute its judgment for that of the trial court. Id.

       {¶29} In granting the motion to dismiss, the trial court relied, in part, on Larkins,

8th Dist. Cuyahoga No. 85877, 2006-Ohio-90, a case in which a defendant’s indictment

was dismissed as a sanction against the state for its violation of Crim.R. 16. The trial

court in Larkins found that the state had willfully withheld exculpatory material from the

defendant, including information that called into question the state’s identification of the

defendant as the perpetrator. Id. at ¶ 43-48. This court affirmed and concluded that the

prejudice to Larkins could not be cured by a new trial because nearly 20 years had passed

since the original trial, eight witnesses for the defense were deceased, numerous witnesses
had unknown addresses, and to present the witnesses’ prior testimony “would be useless

because none of the witnesses had been previously questioned about the exculpatory

evidence withheld in the case.” Id. at ¶ 51.

       {¶30} In this case, the state contends that, unlike Larkins, Keenan is unable to

prove the third Wiles or Parson prong, a prima facie showing of prejudice. The state

argues that Keenan is unable to show that the discovery violations prejudiced him due to

(1) the unavailability of critical witnesses and the passage of time, (2) the degradation of

memory, or (3) an inability to meaningfully use the newly discovered Brady material.

The state also asserts that “Keenan should not be permitted to argue for the exclusion of

Espinoza’s testimony, and then once its excluded, also be able to argue that he is

prejudiced because he cannot confront the testimony with the newly discovered Brady

material.”   According to the state, “by moving to exclude Espinoza’s testimony, the

defendant has invited the ‘error’ of not being able to effectively use the newly discovered

Brady material.”

       {¶31} We reject the state’s position. Espinoza was the state’s only eyewitness to

Klann’s murder.    Based solely on the state’s knowingly withholding the exculpatory

material, Keenan is forever barred from effectively using the material to cross-examine or

impeach Espinoza because Espinoza is dead. Keenan is prejudiced because he cannot

confront a living Espinoza with the exculpatory material because he did not have it when

Espinoza testified at his first and second trials. 5 As recognized by the district court,


       5
        See Keenan, N.D.Ohio No. 1:01 CV 2139, 2012 U.S. Dist. LEXIS 57044, *123-129, for a
“Keenan could have used the evidence to impeach Espinoza, and, because Espinoza was

the State’s sole witness to the crime and the only evidence linking Keenan to the murder,

thereby undercut the State’s entire case.” Keenan, N.D.Ohio No. 1:01 CV 2139, 2012

U.S. Dist. LEXIS 57044, *123.

New Argument on Appeal

       {¶32} For the first time on appeal, the state proposes that while any form of

dismissal was improper, the trial court should have imposed a less severe sanction of

dismissal of the murder count (due to the unavailability of Espinoza), but preserved the

burglary and kidnapping counts, for which both parties had sufficient witnesses available

to independently proceed with trial on those charges.

       {¶33} During oral argument, the state vehemently reiterated its position that the

trial court should have allowed the trial to proceed on the kidnapping and burglary counts

as a less severe sanction, rather than dismissing the entire indictment with prejudice. The

state contends that it was prepared to proceed to trial on all counts, or only on the

kidnapping and burglary counts, and could do so without a prejudicial impact on Keenan.

       {¶34} We reject the state’s contention that the trial court abused its discretion when

it “failed” to allow the state to proceed on the charges of kidnapping and burglary. Not

only does the state raise this argument for the first time on appeal, but, in fact, the state

urged the trial court to allow it to proceed on all charges even after the court disallowed

use of Espinoza’s prior testimony.         See tr. 417-418.      At no time during the state’s


discussion of the significant exculpatory and impeachment value of the withheld evidence.
argument to the trial court, nor in its post-argument briefing, did the state propose the less

severe sanction of dismissing only some of the charges. The state repeatedly told the

court that it was prepared to go forward on the aggravated murder charges, even without

the use of the prior testimony the court excluded from Keenan, D’Ambrosio, and

Espinoza.

       {¶35} We are well aware that the trial court had the discretion to fashion its own

sanction and could have granted the motion to dismiss as to one, some, or all of the

charges. But we find the state’s newly-fashioned argument on appeal that the trial court

failed to consider the less severe sanction of dismissal of only the aggravated murder

charges somewhat disingenuous given that it is the first time the state has raised the issue.

In addition, the trial court expressly stated it was aware of its obligation to impose the least

severe sanction that is consistent with the purposes of the rules of discovery before it

dismissed the indictment.

       {¶36} The aggravated murder, kidnapping, and aggravated burglary crimes with

which Keenan were charged were part of one continuous course of conduct over several

hours and, despite the state’s arguments to the contrary, dependent upon Espinoza’s

allegations. The state fails to accept responsibility for its intentional inactions, and thus

fails to recognize these inactions over the span of more than two decades resulted directly

in the trial court’s dismissal of the entire indictment. Were it not for D’Ambrosio’s

habeas hearing and the discovery of this “new” evidence, Keenan would most likely still
be without it. 6 We agree that the prejudice caused by the state’s refusal to divulge

exculpatory evidence has now made it impossible to restore Keenan to the position that he

should have been in at the time of the first and second trials had he been made aware of

the exculpatory evidence.

       {¶37} Larkins, 8th Dist. Cuyahoga No. 85877, 2006-Ohio-90, was the extraordinary

case in which prejudice caused to the defendant as a result of the state’s failure to disclose

exculpatory evidence could not be cured except by a dismissal with prejudice. This is

also such an extraordinary case. The trial court was in the best position to determine

which sanction under Crim.R. 16(L) was most appropriate. The trial court considered,

but rejected, a less severe sanction, as mandated by Darmond, 135 Ohio St.3d 343,

2013-Ohio-966, 986 N.E.2d 971.

       {¶38} Based on the record in this case, we cannot state that the trial court’s decision

to grant Keenan’s motion to dismiss the indictment with prejudice was so arbitrary,

unreasonable, or unconscionable as to be an abuse of the trial court’s discretion.

       {¶39} There will be no sense of legal or human relief or resolution resulting from

our collective work on this now quarter century-long pursuit of truth.


        6
         See Keenan, N.D.Ohio No. 1:01 CV 2139, 2012 U.S. Dist. LEXIS 57044, *68 and 83 (“An
examination of the development of Keenan’s Brady claims during this long and complex case, and the
symbiotic relationship between his case and that of his co-defendant, demonstrates that despite
Keenan’s and D’Ambrosio’s persistent discovery efforts, the State continued to withhold much of the
evidence now at issue until its hand was forced in the [2002] D’Ambrosio case. * * * Throughout
the twenty-three years of his case, Keenan persistently has sought discovery from the State, and was
thwarted at every stage. He only obtained most of the information as a result of his co-defendant’s
highly contentious and hard-won habeas discovery.”).
        {¶40} In 1988, a cowardly and unspeakable vicious homicide was carried out upon

the victim, Anthony Klann.        All surviving family, friends, and this community are

frustrated by the failure to effectuate justice resulting from his violent death.

        {¶41} The 2012 trial court is not at fault for dismissing the retrial of this murder.

The degradation of this case began 25 years ago, when the desire to obtain a conviction

overwhelmed the state’s responsibility to seek the fullest truth of that day in September

1988.

        {¶42} A defendant’s right to a fair trial dates back to the adoption of our nation’s

most revered founding documents.        In this case, the federal court determined that a fair

trial had not taken place; and in 2012, the trial court decided it could not in the future.

While the victim deserved justice, the bad-faith conduct from 1988 forward made that

impossible.

        {¶43} The state’s sole assignment of error is overruled.

        {¶44} Judgment affirmed.

        It is ordered that appellee recover from appellant his costs herein taxed.

        The court finds there were reasonable grounds for this appeal.

        It is ordered that a special mandate issue out of this court directing the common

pleas court 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.
LARRY A. JONES, SR., PRESIDING JUDGE

TIM McCORMACK, J., CONCURS
SEAN C. GALLAGHER, J., DISSENTS WITH
SEPARATE OPINION


SEAN C. GALLAGHER, J., DISSENTING:

       {¶45} I respectfully dissent from the opinion of the majority. In my opinion, the

trial court abused its discretion by imposing the most severe discovery sanction, dismissal

of the indictment, after it already imposed a less severe one, precluding evidence, all for

the same Brady violations that formed the basis of awarding a new trial as the original

sanction. I further believe that the majority combines two different standards used to

review a due process claim based on prior Brady violations, with ongoing discovery

violations, to create one unworkable standard that offers no prospective guidance to the

trial courts.   Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Understandably, this conflation of issues began with this district’s Larkins decision;

however, in light of the Ohio Supreme Court’s decision in Darmond, Larkins must be

limited by the facts of that case.   I would, accordingly, reverse the decision of the trial

court and remand for further proceedings. State v. Larkins, 8th Dist. Cuyahoga No. 85877,

2006-Ohio-90; State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971.

       {¶46} In its assignment of error, the state argues the trial court erred by relying on

Larkins and granting the motion to dismiss with prejudice as a discovery sanction, when

either no sanction or a lesser sanction was appropriate.     This case originated from the
federal district court’s judgment determining that the state committed a Brady violation by

withholding evidence, and sanctioning the state for the violation by ordering either a new

trial or dismissal of the indictment, at the state’s election.   The state elected a new trial

upon remand to the trial court.    Keenan, after pursuing cursory discovery, filed a motion

to dismiss the indictment based on the Brady violation, claiming the new trial would not

remedy the violation.   Both the trial court and the majority analyzed Keenan’s claim as a

discovery violation sanctionable pursuant to Crim.R. 16, rather than as a due process

violation based on the original Brady violation, when the discovery for the new trial

revealed that a retrial would violate the defendant’s constitutional due process rights in

light of the degraded state of discovery caused by the passage of time.

       {¶47} If the dismissal of the indictment was predicated upon a Crim.R. 16

discovery violation and analysis, once the trial court determined that a discovery sanction

was warranted based on its tripartite Parson analysis, the court should have determined

whether a less severe sanction would suffice to remedy the prejudice caused by the

discovery violation. State v. Parson, 6 Ohio St.3d 442, 445, 453 N.E.2d 689 (1983).

The trial court conducted the three-prong analysis as set forth in State v. Wiles, 59 Ohio

St.3d 71, 78-79, 571 N.E.2d 97 (1991) (reiterating the tripartite Parson analysis), to

determine that a further discovery sanction was warranted, given the ongoing prejudice to

Keenan caused by the Brady violations. The state’s appeal focuses on the trial court’s

conclusion that Keenan was prejudiced by the discovery violations in its analysis of the

third Wiles prong, and whether a less severe sanction would have been consistent with the
purposes of the criminal discovery rules.

       {¶48} In Larkins, 8th Dist. Cuyahoga No. 85877, 2006-Ohio-90, upon which the

majority heavily relies, this court affirmed the trial court’s dismissal of the defendant’s

indictment as a sanction for the state’s violation of Crim.R. 16. In that case, the state had

willfully withheld exculpatory material from the defendant, including information that

called into question the state’s identification of the defendant as the perpetrator, resulting

in prejudice to the defendant. Id. at ¶ 43-48.      The prejudice to Larkins could not be

cured by a new trial because eight witnesses for the defense were deceased and 16 other

witnesses had unknown addresses, and to present those witnesses’ prior testimony would

have been useless because none of the witnesses had been previously questioned about the

exculpatory evidence.    Id. at ¶ 51.

       {¶49} The Larkins court essentially shoe-horned a due process argument — that the

new trial awarded as a sanction for the Brady violation would violate a defendant’s right to

due process in light of the passage of time and degradation of witnesses’ memories — into

the framework for analyzing sanctions used to remedy ongoing pretrial discovery

violations pursuant to Crim.R. 16. It is for this reason that Larkins must be limited to its

facts. In both Lakewood v. Papadelis and Darmond, the Ohio Supreme Court interposed

an additional factor to resolving discovery disputes that this court’s Larkins analysis

omitted.   Lakewood v. Papadelis, 32 Ohio St.3d 1, 4-5, 511 N.E.2d 1138 (1987);

Darmond, 135 Ohio St.3d 343, 352, 2013-Ohio-966, 986 N.E.2d 971.

       {¶50} Lakewood and Darmond instruct the court to analyze the effectiveness of a
less severe sanction, such as preclusion of evidence, prior to imposing the most severe

sanction available pursuant to Crim.R. 16, which is dismissal of the indictment.

Lakewood; Darmond (acknowledging that although it would have been “helpful” for the

state to provide alternative sanctions in its opposition to a motion to dismiss the

indictment, it was an unnecessary prerequisite). The obligation rests with the trial court

to ensure that the least severe sanctions available are considered. Id. The majority

creates a standard shifting the burden to the state to provide the court with less severe

sanction options. Under that standard, the state’s failure to do so would forfeit its right to

argue that the court failed to consider the effectiveness of the less severe sanction.

Lakewood and its progeny set no such standard.

       {¶51} While the trial court addressed the Parson factors in this case, it failed to

specifically consider the effectiveness of a less severe discovery sanction, concluding its

sole obligation was to merely consider the sanction of a new trial, derived from the

original Brady violation, as opposed to considering the effectiveness of a less severe

sanction, such as preclusion of evidence.         It is important to note the completely

unworkable standard the majority perpetuates.      The vehicle Keenan used to seek further

sanctions for the Brady violations was a motion to dismiss the indictment after the retrial

was already granted as a sanction for the Brady violation. Thus, the retrial was not a

sanction available to impose any further discovery sanctions against the state; it was

already granted.   If, as the majority implies, the standard of review is derived from

Crim.R. 16, the court necessarily abused its discretion when it failed to consider the
effectiveness of any other discovery sanction to address the prejudice emanating from the

deteriorated state of discovery. Darmond at 352. The trial court’s only consideration

was of the sanction imposing a retrial, a sanction not available at that stage of the

proceedings for the purposes of a Crim.R. 16-derived sanction.

       {¶52} Moreover, the trial court imposed an additional sanction against the state for

the Brady violation by precluding its use of Espinoza’s prior testimony at the new trial.

The court then, without addressing the effectiveness of that sanction, bootstrapped the

preclusion of testimony with Keenan’s argument that he was prejudiced by the exclusion

because he could not use the newly discovered exculpatory evidence, which was the basis

for the Brady violation, to impeach the only eyewitness to the crime.       Such a circular

argument leaves the state in an untenable position.

       {¶53} Under the majority’s rationale, trial courts are now free to consider Crim.R.

16 sanctions that are unavailable, or to consider imposing the most severe sanctions based

on the prejudice caused by the imposition of the less severe sanction in resolving criminal

discovery disputes.   I cannot join such a broad advancement of Darmond or Larkins.

The majority rationalizes the broad interpretation by perpetuating an unsupported standard,

from Larkins, that a trial court does not abuse its discretion in dismissing an indictment

based on Brady violations for which a new trial was already granted if it is impossible to

restore the defendant to the position he should have been in at the time of the first trial.

This essentially creates a bright-line rule that the state will be precluded from retrying

defendants after a Brady violation is found years after the original trial: it will always be
impossible to restore the defendant to his original position through the ravages of time.

Most courts have established that the typical remedy for a Brady violation is the granting

of a new trial, and speak nothing of a requirement that the defendant be restored to his

original position.   State v. Mapp, 3d Dist. Union No. 14-10-34, 2011-Ohio-4468,  32;

United States v. Presser, 844 F.2d 1275, 1286 (6th Cir.1988).

       {¶54} Keenan’s argument and the trial court’s ruling are both grounded on a

Crim.R. 16 discovery violation. The reality is, however, Keenan’s motion to dismiss the

indictment raises a due process claim in that a new trial would violate Keenan’s

constitutional right to due process because of the passage of time and the unavailability of

witnesses after discovery was conducted for the new trial, which was awarded as a

sanction for the Brady violation. This analysis stands apart from a claim for ongoing

discovery violations pursuant to Crim.R. 16. Keenan, however, failed to substantiate the

merits of a due process argument based on the record before this court.             Tellingly, the

majority avoids any discussion on the due process arguments Keenan raised, while

implicitly relying on such in affirming the trial court’s decision through reliance on

Larkins.

       {¶55} Any reliance on Larkins to fuse the due process standards with a Crim.R. 16

discovery violation analysis is especially misplaced in light of Darmond.7 Larkins was


        7
          I acknowledge the Ohio Supreme Court’s decision in Darmond, 135 Ohio St.3d 343, 351,
2013-Ohio-966, 986 N.E.2d 971, occurred subsequent to the trial court’s proceedings in the current
case. Our references to Darmond are intended for the sake of convenience. Darmond merely
reiterated the standard advanced in Lakewood, 32 Ohio St.3d 1, 4-5, 511 N.E.2d 1138, which was the
same standard the trial court applied in dismissing the indictment. Further, this district held that
decided under the presumption that the discovery sanction inquiry ended without any

specific analysis regarding the effectiveness of less severe discovery sanctions,

specifically, but not exclusively, whether the sanction of exclusion of the unavailable

witnesses’ testimony the trial court already imposed would have sufficed to remedy the

prejudice caused by the discovery violation. See Larkins, 8th Dist. Cuyahoga No. 85877,

2006-Ohio-90,  51 (in Larkins, this court did not consider the effectiveness of precluding

the use of the unavailable witnesses’ prior testimony at the retrial).              The Larkins court

merely relied on Larkins’s establishment of prejudice, with no analysis regarding the

effectiveness of the least severe sanction. Id. at  51.

       {¶56} Similar to the Larkins court’s approach, the concept of due process does not

require the court to determine the effectiveness of a less severe sanction before dismissing

an indictment on due process grounds either.          See, e.g., State v. Cline, 8th Dist. Cuyahoga

No. 64776, 1994 Ohio App. LEXIS 683, *5-6 (Feb. 24, 1994) (defendant need only show

actual prejudice before the burden shifts to the state to establish a justifiable basis for the

delay in indicting the defendant). Thus, according to the Larkins court, the due process

and Crim.R. 16 discovery sanction arguments were coextensive:                      both required the

defendant to establish prejudice as the culminating inquiry. The fact that the Larkins


Lakewood applied equally to discovery violations by the state and the defendant prior to the Ohio
Supreme Court’s final pronouncement on the issue. See State v. Wolf, 8th Dist. Cuyahoga No.
83632, 2004-Ohio-5023,  17 (applying the least severe sanction rationale to the standard of review to
determine whether the trial court abused its discretion in not excluding a state’s witness despite the
failure to disclose in favor of a less severe sanction, given the scope of the discovery violation and the
lack of prejudice to the defendant); State v. Brown, 8th Dist. Cuyahoga No. 83976, 2004-Ohio-5863,
¶ 6 (applying Lakewood analysis to the state’s discovery violations).
court combined the two separate arguments was harmless, given that overlap and the fact

that Larkins presented specific evidence supporting the due process arguments. Larkins

must be limited to the facts and circumstances of that case in light of the fact that

discovery sanctions predicated upon Crim.R. 16 must undergo the effectiveness of a less

severe sanction analysis.   The majority’s reliance on Larkins is, therefore, misplaced.

       {¶57} Further, Larkins does not stand for the proposition that the degradation of a

witness’s memory is presumed from the passage of time, as Keenan argued and the trial

court considered.   The Larkins court found the unavailability of 24 witnesses prejudiced

the defendant’s ability to defend the case “wholly apart from issues relating to the typical

degradation of memories occurring over long periods of time.”            Larkins, 8th Dist.

Cuyahoga No. 85877, 2006-Ohio-90.          Thus, the Larkins court did not address the

degradation of the witnesses’ memories because the unavailability of so many witnesses

precluded the defendant from presenting a meaningful defense in the first place.

       {¶58} In this case, it is not enough to presume the degradation of a witness’s

memory prejudices Keenan for the purposes of whether any retrial would violate Keenan’s

right to due process under Article I, Section 16, of the Ohio Constitution and the Fifth and

Fourteenth Amendments to the United States Constitution.                  In fact, Keenan

acknowledged the lack of specific evidentiary material to substantiate the degradation of

memory issue and instead relied on the notion of “common sense” to determine that the

witnesses would not have sufficient memory to testify at the retrial. Tr. 395:13-20.

Such a presumption would automatically entitle a defendant to a finding of prejudice that
warrants a dismissal of the indictment in all cases where a retrial is granted based on any

type of Brady violation made years after the original trial.     It must be reiterated that, to

the contrary, most courts have established that the typical remedy for a Brady violation is

the granting of a new trial. Mapp, 3d Dist. Union No. 14-10-34, 2011-Ohio-4468,  32;

Presser, 844 F.2d 1275, 1286 (6th Cir.1988).

       {¶59} This court has maintained in the similar context of pre-indictment delay, the

mere “possibility of prejudice inherent in any extended delay: that memories will dim,

witnesses become inaccessible, and evidence be lost[,] * * * are not in themselves enough

to demonstrate that [a defendant] cannot receive a fair trial * * *.” State v. Cline, 8th

Dist. Cuyahoga No. 64776, 1994 Ohio App. LEXIS 683, *5-6 (Feb. 24, 1994), citing State

v. Starks, 8th Dist. Cuyahoga No. 50087, 1986 Ohio App. LEXIS 5845 (Mar. 6, 1986).           It

is incumbent upon the defendant to establish that the witnesses currently have such a

diminished ability to recollect the events as to prejudice the defendant in a retrial. State

v. Leonard, 8th Dist. Cuyahoga No. 98626, 2013-Ohio-1446,  25.            I see no reason to

create a presumption and deviate from our pre-indictment delay standard for the purposes

of determining whether the retrial, premised on the Brady violation after the parties

pursued discovery, is violative of the defendant’s constitutional right to due process.

Accordingly, the trial court’s conclusion that the available witnesses were unable to

effectively testify at the retrial is not supported by the evidence.   There is no evidence in

the record establishing the prejudice created by the passage of time.      Quite the opposite.

The state presented evidence that witnesses were ready and able to testify at the retrial.
       {¶60} Of the five witnesses who are unavailable to testify at Keenan’s retrial, any

potential prejudice caused by Espinoza’s and Crimi’s unavailability was seemingly

resolved by the trial court’s preclusion of Espinoza’s previous testimony and the state’s

stipulation as to the content of Crimi’s alleged exculpatory statements. Neither the trial

court nor Keenan offered any rationale explaining the ineffectiveness of those remedial

steps for the purposes of the aggravated murder counts other than the bootstrapping claim

that the exclusion then prejudices Keenan.    The trial court completely failed to consider

any prejudice with regard to the individual counts for kidnapping and aggravated burglary

as required when considering whether to impose sanction pursuant to Crim.R. 16. The

trial court thus abused its discretion in dismissing the indictment without undergoing the

correct analysis prior to imposing the most severe discovery sanction available.

       {¶61} It is unfortunate that Keenan may be placed in the position of potentially

having to endure a third trial for acts that occurred over two decades ago, but the victim

deserves a just process, as does Keenan.   Accordingly, I would find the trial court abused

its discretion in dismissing the entire indictment as a discovery sanction pursuant to

Crim.R. 16 without first addressing the effectiveness of a less severe discovery sanction to

address the Brady violations. If the dismissal was predicated upon due process grounds,

it cannot be determined that the retrial violates Keenan’s right to due process based on the

record submitted on appeal.   In light of the foregoing, I would reverse the decision of the

trial court and remand for further proceedings.
