[Cite as State v. Gapen,
2021-Ohio-3252.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28808
:
v. : Trial Court Case No. 2000-CR-2945
:
LARRY JAMES GAPEN : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 17th day of September, 2021.
...........
MATHIAS H. HECK, JR. by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee
ALLEN L. BOHNERT, Atty. Reg. No. 0081544 & ADAM M. RUSNAK, Atty. Reg. No.
0086893, 10 West Broad Street, Suite 1020, Columbus, Ohio 43215
Attorneys for Defendant-Appellant
.............
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EPLEY, J.
{¶ 1} In this capital case, Defendant-Appellant Larry James Gapen appeals from
the judgment of the Montgomery County Court of Common Pleas, which overruled his
motion for leave to file a delayed motion for a new trial. For the reasons that follow, the
trial court’s judgment will be affirmed.
I. Facts and Procedural History
{¶ 2} Around 7:30 p.m. on September 17, 2000, Gapen entered the home of his
ex-wife, Martha Madewell, and saw her lying on the couch in the basement with an
unfamiliar man. Instead of announcing his presence, he left unnoticed. After having dinner
with his son and his son’s girlfriend, he returned in the early morning hours of September
18 and found Madewell and the still-unknown man (he was later identified as Nathan
Marshall, Madewell’s ex-husband) asleep on the same basement couch.
{¶ 3} This time Gapen did not leave. Instead, he produced a chopping maul (a type
of axe) and brutally beat the sleeping pair to death with the weapon. Gapen admitted to
investigators that after attacking Madewell, he had sexual relations with her. Forensic
evidence presented at trial confirmed the claim. Gapen then climbed two flights of stairs
to the bedroom of Madewell’s 13-year-old daughter, Jessica Young, where he beat her
with the maul as well because, as he told detectives, she had been disrespectful to him.
{¶ 4} Gapen left the maul in the second-floor bedroom and departed the residence.
One of Madewell’s other children heard the commotion and found the bodies of his mother
and Marshall in the basement. He then went upstairs and found Jessica bleeding and
badly injured, but still alive. The police were called, and Jessica was taken to the hospital
where she later died from her injuries.
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{¶ 5} Approximately 7:30 the following morning, Gapen was arrested at a doughnut
shop in Vandalia. Officers found Madewell’s purse inside his vehicle. He later confessed
to detectives that he was not sorry and, in fact, felt relieved. He stated that it “felt like a
weight had been lifted from him,” and that “this [was] the best … he had felt in weeks.”
{¶ 6} On October 18, 2000, Gapen was charged in a 16-count indictment with
escape, rape, aggravated burglary, aggravated robbery, and the aggravated murders of
Madewell, Marshall, and Young. There were four counts of aggravated murder pertaining
to each of the three victims and each count included five death specifications. The five
aggravating specifications were:
(1) The offenses were committed while Gapen was under detention or at large from
having broken detention;
(2) The offenses were part of a course of conduct involving the purposeful killing
of or attempt to kill two or more persons;
(3) The offenses were committed while Gapen was committing, attempting to
commit, or feeling immediately after committing or attempting to commit the
offense of aggravated burglary and Gapen was the principal offender in the
commission of the aggravated murder;
(4) The offenses were committed while Gapen was committing, attempting to
commit, or fleeing immediately after committing or attempting to commit the
offense of rape and Gapen was the principal offender in the commission of the
aggravated murder; and
(5) The offenses were committed while Gapen was committing, attempting to
commit, or fleeing immediately after committing the offense of aggravated robbery
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and Gapen was the principal offender in the commission of the aggravated murder.
Trial Court Proceedings
{¶ 7} Following a host of pretrial motions and other proceedings, the case
proceeded to a jury trial on May 21, 2001. The trial lasted several weeks and resulted in
the jury finding Gapen not guilty of rape, but guilty on all remaining counts and death
penalty specifications.
{¶ 8} The penalty phase of the trial followed, and Gapen presented many
witnesses in mitigation. Dr. Robert Smith, a clinical psychologist, testified that at the time
of the offense, Gapen was in acute depression, was a functioning alcoholic, an obsessive,
and a perfectionist. It was his opinion, however, that Gapen had no anti-social tendencies
or any post-traumatic stress disorders. The defense also called “character witnesses,”
including family members, law enforcement officers with whom he had interacted over the
years, and men and women associated with youth football leagues in the area, as Gapen
was a long-time youth coach.
{¶ 9} After several days of deliberations, the jury returned with a recommendation
of life imprisonment without parole for the murders of Madewell and Marshall. However,
they found beyond a reasonable doubt that the aggravating circumstances of which
Gapen was found guilty in the murder of Young outweighed the mitigating factors, and
recommended that Gapen be sentenced to death for the aggravated murder of Young by
prior calculation and design.
{¶ 10} Gapen’s lead trial counsel believed the verdicts to be “inconsistent” because
the jury recommended the death sentence for only one of the three murder convictions
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and suspected this was a case of juror misconduct or the jury’s violating the court’s
instructions. Counsel objected on the record immediately post-verdict and then filed a
motion a few days later to further his argument. The motion was overruled.
{¶ 11} On July 3, 2001, the trial court accepted the jury’s recommendation and
sentenced Gapen to death for Young’s murder and life in prison without the possibility of
parole for the murders of Madewell and Marshall. In addition, the court imposed additional
terms of imprisonment on the underlying offenses totaling 25 years, to be served
consecutively to his aggravated murder sentences.
Direct Appeal
{¶ 12} On August 23, 2001, Gapen filed his direct appeal at the Ohio Supreme
Court and raised 14 propositions of law. That Court found one proposition relating to the
escape conviction (and the associated specifications) to be well-taken and dismissed that
specific conviction. The Supreme Court affirmed all of Gapen’s other convictions and
independently weighed the aggravating circumstances against the mitigating factors and
compared his death sentence to others imposed in similar cases. The death sentence
arising from Young’s murder was affirmed in December 2004. State v. Gapen, 104 Ohio
St.3d 358,
2004-Ohio-6548,
819 N.E.2d 1047. (Gapen I).
2002 Post-Conviction Petition
{¶ 13} While his direct appeal was ongoing, Gapen was appointed a team of
lawyers and investigators from the Ohio Public Defender’s office to litigate post-conviction
matters. By the fall of 2002, Gapen’s post-conviction team had begun the process of
finding and interviewing jurors, and in September 2002, the team spoke with several
jurors including Juror M.M., Juror R.S., and Juror D.N.
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{¶ 14} Armed with the information gleaned from the juror interviews, on October 4,
2002, Gapen filed a petition for post-conviction relief pursuant to R.C. 2953.21 and a
motion for discovery. The post-conviction petition alleged, among other things, that the
jurors ignored the trial court’s instructions and (1) improperly considered non-statutory
aggravating circumstances in deciding whether to impose the death penalty, (2)
improperly considered evidence other than what was admitted during trial, and (3) failed
to keep an open mind during the penalty phase. It also alleged ineffective assistance of
counsel for not offering a psychological explanation for Young’s murder and for not
presenting Gapen’s testimony during the guilt phase of the trial.
{¶ 15} In support of the juror misconduct claim, Gapen attached the affidavit of
Kathryn Sandford, an attorney with the Ohio Public Defender’s office who attended two
juror interviews. Her statement averred that Juror R.S. said that the primary aggravating
circumstance that weighed in favor of the death penalty was the premeditation of the
crimes. According to Sandford’s affidavit, Juror R.S. also admitted that after the evidence
was presented at the guilt phase, he had already made up his mind to vote for the death
penalty. Further, Sandford reported that Juror R.S. claimed that another juror, D.N.,
conducted his own outside research on the death penalty and relayed that information
during deliberations.
{¶ 16} While some information Sandford got from Juror R.S. was likely favorable
to Gapen, Juror R.S. also stated that Gapen’s attorneys “went to great lengths to explain
Mr. Gapen’s crime of passion as it related to Martha Madewell and the man she was
sleeping with[.] … [They] never addressed any reason for the death of Mr. Gapen’s
thirteen-year-old step-daughter.”
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{¶ 17} Gapen submitted a second Sandford affidavit, this time regarding her
interview with Juror M.M. In it, she averred that Juror M.M. said the most significant
aggravating circumstance was the “cold-bloodedness” of Gapen’s killing two people in
the basement, “calmly” talking to a step-daughter who noticed the commotion, then
“calmly” walking up the stairs to kill Young, and then “calmly” talking to another step-child.
Juror M.M. also relayed his opinion that the defense theory of a “crime of passion” fit the
killings of Madewell and Marshall, but not Young. Further, Juror M.M. stated that another
juror, Juror D.N., conducted independent research into the Biblical meaning of the death
penalty and shared his views with the rest of the jury. Finally, he revealed that Juror D.N.
read religious texts during side bars and while waiting for trial to resume during breaks.
{¶ 18} The post-conviction motion had a third affidavit attached, from Dorian Hall,
an investigator with the Ohio Public Defender’s office who was present during the Juror
D.N. interview. According to Hall’s affidavit, Juror D.N. indicated that, in his view, if a
person is guilty of murder, the only appropriate sanction is death. Further, Hall indicated
that Juror D.N. stated that he made up his mind to vote for death at the conclusion of the
guilt phase.
{¶ 19} According to the defense team affidavits, none of the jurors interviewed
were willing to sign an affidavit.
{¶ 20} On December 16, 2002, the State filed a motion for summary judgment in
the post-conviction proceeding. The trial court granted the motion in March 2004 without
a hearing, and Gapen timely appealed. On appeal, we affirmed the trial court’s decision
as to the dismissal of the juror misconduct claims but reversed the court’s denial of
Gapen’s ineffective assistance of counsel claim for not presenting expert testimony
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explaining why Young was killed. State v. Gapen, 2d Dist. Montgomery No. 20454, 2005-
Ohio-441 (Gapen II).
{¶ 21} Upon remand, the trial court held an evidentiary hearing, at which lead trial
counsel and Dr. Smith testified. After issuing a lengthy written opinion, the trial court again
overruled Gapen’s post-conviction petition, finding that Gapen could not demonstrate
either deficient performance by trial counsel or prejudice. Again, Gapen appealed, and
we affirmed, reasoning, in part, that “[t]he decision of what mitigating evidence to present
during the penalty phase of a capital trial is a matter of trial strategy.” State v. Gapen, 2d
Dist. Montgomery No. 21822, 2007-Ohio-4333, ¶ 22 (Gapen III).
Federal Habeas Corpus Proceedings
{¶ 22} In the summer of 2008, Gapen had federal counsel appointed, and on
March 10, 2009, he filed a petition for a writ of habeas corpus in the United States District
Court for the Southern District of Ohio. The petition alleged 23 grounds for relief. He then
filed several amended petitions. Under federal habeas procedures, Gapen’s attorneys
can be equipped with subpoena power with leave from the District Court, and in early
October 2010, federal counsel, for the first time, made a deposition request. The
discovery request was granted in late October 2011.
{¶ 23} In December 2011 and January 2012, members of Gapen’s federal team
began informally interviewing jurors. Juror M.M. was interviewed twice in December 2011
by Jacob Cairns and Allen Bohnert, assistant federal public defenders. According to
Cairns’ affidavit, during the first interview on December 1, 2011, Juror M.M. disclosed that
a few years before sitting as a juror on the Gapen trial, there was an attempted murder-
suicide in a duplex property that he owned. He also told the attorneys that during
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deliberations, jurors found a receipt in Gapen’s wallet that indicated Gapen had
purchased a gun. Cairns’ affidavit stated that Juror M.M. found this to be significant
because “it showed that Mr. Gapen had been plotting the homicides for some time and
that they were premeditated.” The affidavit also noted that Juror M.M. told Cairns that
after the conclusion of the trial, he and a few other jurors spoke with the trial judge. Juror
M.M. stated that he asked the judge about the gun receipt and the judge purportedly
responded that “it was irrelevant.”
{¶ 24} On December 14, 2011, Juror M.M. was again interviewed by Cairns. This
second interview, according to the Cairns’ affidavit, centered around the gun receipt found
in Gapen’s wallet. Juror M.M. indicated that he believed Gapen had used a fake social
security number to purchase the gun because, he suspected, Gapen would have been
unable to use his own due to pending charges and because he was on home electronic
monitoring.
{¶ 25} According to Cairns’ affidavit, Juror M.M. declined to sign an affidavit, and
in January 2012, he passed away.
{¶ 26} Cairns was involved in the interviews of several other jurors during this time
period, including Jurors D.N., R.S., D.B., R.S.G., and H.R.
{¶ 27} Following the informal interviews, several jurors were deposed in federal
court on January 26-27, 2012, and May 31, 2012. The depositions of Jurors V.T.,
Redacted Juror, and M.F. were all brief and they testified that they did not recall anything
out of the ordinary during the trial or deliberations. Juror D.N.’s deposition, however, was
lengthy and expanded on issues Gapen raises in his motion for leave to file a delayed
motion for a new trial.
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{¶ 28} Juror D.N. testified that when he learned he was going to be a juror in this
case, he did some internet research into crime and punishment, specifically the death
penalty. He was clear, though, that he did not bring any of that material with him to the
courthouse. Juror D.N. also testified that he brought a book with him into sequestration
entitled “Relativism, Feet Firmly Planted in Mid-Air.” This was a book, he said, that he
ordered prior to trial and it just happened to be delivered during that period. He further
stated that the book did not influence his thinking at the trial because he did not yet
understand its teaching.
{¶ 29} There was also discussion during the deposition about Juror D.N.’s
adoption and understanding of the theory of “lex talionis,” which he described as a
philosophy which teaches that “the crimes should equal the punishment.” Juror D.N.
claimed, however, that the philosophy did not play a role in his deliberations. “11 years
ago, I was just becoming familiar with this stuff. … Back then I was convinced about
Gapen more on the evidence in the court. The evidence is what drove me to the decision.”
He did admit, though, that he mentioned “lex talionis” to the other jurors, but insisted that
he just defined the term and did not try to impose his views on them.
{¶ 30} Juror D.N. also revealed that he sent an email to the judge shortly after the
trial’s conclusion. The email stated that to reach a verdict, the jury compromised. But as
to Young, “we all unanimously voted that there were no mitigating circumstances thus the
death penalty fit the crime (lex talionis).”
{¶ 31} On September 30, 2013, Gapen filed a motion to stay and abey the habeas
process to pursue new state court proceedings. Gapen’s federal attorneys were granted
permission to litigate at the state level in October 2013, and on November 12, 2013, the
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federal magistrate judge granted the stay of the habeas proceeding.
Motion for leave to file motion for new trial
{¶ 32} On October 16, 2013, Gapen filed a motion for leave to file a delayed motion
for a new trial with the Montgomery County Court of Common Pleas and alleged five
grounds for relief:
(1) One of the jurors who was seated at his trial was biased against him and
incapable of fairly deciding the case, because that juror failed to disclose
information during voir dire about a crime that was committed against his neighbor;
(2) The jury was in possession of prejudicial evidence during deliberations that had
never been admitted or was specifically excluded at trial;
(3) The trial judge failed to disclose evidence of constitutional violations that took
place after the jury had retired to deliberate, namely that unadmitted evidence had
made its way into the jury room, that the judge had impermissible communication
with a juror, that an extra-judicial source of law had been relied upon by at least
one juror, and that a biased juror believed that death was the only appropriate
sentence for murder;
(4) One of the jurors who was seated at his trial was biased against him and
incapable of fairly deciding an appropriate sentence because he would
automatically vote for death as a punishment for murder;
(5) The juror who would automatically vote for death as a punishment for murder
adhered to the principle of lex talionis, the “law of retaliation,” and shared his beliefs
with the other jurors.
{¶ 33} Following the State’s opposition memo, the trial court set the matter for a
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hearing, which, due to scheduling conflicts, took place over the course of four dates,
spanning nearly a year (August 29, 2014 – August 14, 2015). The hearing featured
testimony from many members of Gapen’s defense team, including trial counsel and both
state and federal public defenders involved in post-conviction and habeas proceedings.
{¶ 34} The first witness presented by Gapen was Alan Rossman, the director of
the habeas unit at the Federal Public Defender’s Office for the Northern District of Ohio.
(All federal proceedings in this case have taken place in the Southern District of Ohio.)
He testified about the federal habeas process and the interplay between state and federal
courts.
{¶ 35} David Greer, Gapen’s lead trial counsel, took the stand next. He testified
that he learned in 2013 that excluded evidence somehow made it into the jury room for
deliberations. He further explained that had he known about it at the time, he would have
moved for a mistrial. Greer also stated that he filed a sentencing memo in June 2001
arguing that there was inconsistency with the life sentence recommendations for the
murders of Madewell and Marshall and the death penalty recommendation for Young’s
killing.
{¶ 36} The court also heard testimony from Kathryn Sandford, an attorney with the
Ohio Public Defender’s Office who assisted with juror interviews in 2002. Specifically,
Sandford stated that she was involved with the interviews of Juror M.M. and Juror R.S.
She also testified that because the jurors were unwilling to sign affidavits, she completed
one. Sandford acknowledged that all the interviews done by the Ohio Public Defender’s
Office were done without subpoenas.
{¶ 37} Dorian Hall, an investigator with the Ohio Public Defender’s Office, testified
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that she attended the 2002 interview of Juror D.N., and that she signed an affidavit
because Juror D.N. would not. According to Hall, Juror D.N. revealed several things about
his world view and human behavior, specifically his notion that if one is guilty of murder,
death is the only appropriate sanction. Like Sandford before her, Hall testified that no
subpoena was necessary to speak with Juror D.N.
{¶ 38} Jacob Cairns, an attorney at the Federal Public Defender’s Office in
Columbus, was the penultimate witness. Cairns participated in juror interviews in
December 2011 and January 2012, including interviews with Juror M.M, Juror D.N., Juror
H.R., Juror D.B, Juror R.S, and alternate Juror J.G. He testified that he did not use a
subpoena to speak with the jurors.
{¶ 39} Finally, on August 14, 2015, William Moody testified. Moody was an
assistant Ohio Public Defender and was on Gapen’s original post-conviction team. He
also testified that he represented Gapen on direct appeal in 2001. One of Moody’s jobs
during the time he represented Gapen was to interview jurors. He noted that in 2002 he
interviewed Juror D.N. During that conversation, Juror D.N. had a document that Moody
described as: “[I]t was like a table that would – of his issues that – sort of his world view
of how he viewed our society and culture.” Most of the interview, Moody said, was about
theology and philosophy and how that world view impacted the case. According to Moody,
Juror D.N. also mentioned that he tried to contact the trial judge in the aftermath of the
verdict.
{¶ 40} At the close of testimony, Gapen’s attorneys asked for written closing
arguments – a request granted by the trial court. The briefing schedule, however, was
quite expansive and was not completed until August 5, 2016, almost a full year after the
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conclusion of the hearing.
{¶ 41} On April 29, 2020, the trial court issued a 49-page decision overruling
Gapen’s motion for leave to file a delayed motion for a new trial. He has filed a timely
appeal.
II. Gapen’s Motion for Leave to File a Motion for New Trial
{¶ 42} In his first and second assignments of error, Gapen makes the following
related claims: the trial court abused its discretion when it found that Gapen was not
unavoidably prevented from discovering evidence, and it abused its discretion when it
found that the delay in filing his evidence was not reasonable or sufficiently explained.
We can distill his arguments down to this: the trial court abused its discretion when it
overruled his motion for leave to file a delayed motion for a new trial.
{¶ 43} Crim.R. 33 states that motions for a new trial based on newly discovered
evidence must be filed within 120 days of the verdict. To file a motion for a new trial after
that threshold has passed, the petitioner must first file a motion for leave, demonstrating
by clear and convincing proof that he or she has been unavoidably prevented from filing
the motion in a timely fashion. State v. Lenoir, 2d Dist. Montgomery No. 26080, 2015-
Ohio-1045, ¶ 14.
{¶ 44} Clear and convincing proof is the amount of proof that will produce in the
mind of the trier of fact a “firm belief or conviction as to the facts sought to be established.”
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d (1954), paragraph three of the syllabus.
The standard is not satisfied by a mere allegation that the defendant has been
unavoidably prevented from discovering new evidence. State v. Smith, 2d Dist.
Montgomery Nos. 21463, 22334,
2008-Ohio-6330, ¶ 59. A petitioner must submit
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documents that on their face support the proposition that he was unavoidably prevented
from discovering the evidence in a timely manner. State v. Lanier, 2d Dist. Clark No. 2009
CA 84, 2010-Ohio-2921, ¶ 16.
{¶ 45} “[A] party is unavoidably prevented from filing a motion for new trial if the
party had no knowledge of the existence of the ground supporting the motion for new trial
and could not have learned of the existence of that ground within the time prescribed for
filing the motion for new trial in the exercise of reasonable diligence.” State v. Walden, 19
Ohio App.3d 141, 145-146,
483 N.E.2d 859 (10th Dist.1984). We have further explained
the concept by stating that “a defendant fails to demonstrate he or she was unavoidably
prevented from discovering new evidence when he would have discovered that
information earlier had he or she exercised due diligence and some effort.” Lenoir at
¶ 24, citing State v. Metcalf, 2d Dist. Montgomery No. 26101,
2015-Ohio-3507, ¶ 11.
{¶ 46} If the petitioner meets his burden, but there has been an undue delay in
filing the motion after evidence was discovered, the court must then decide if the delay
was “reasonable under the circumstances or that the defendant has adequately explained
the reason for the delay.” State v. Stansberry, 8th Dist. Cuyahoga No. 71004, 1997 WL
626063, *3 (Oct. 9, 1997); see also State v. York, 2d Dist. Greene No. 2000-CA-70, 2001-
Ohio-1.
{¶ 47} We review the trial court’s ruling on a motion for leave to file a delayed
Crim.R. 33 motion for an abuse of discretion. Lenoir at ¶ 16. An abuse of discretion has
been described as an attitude that is unreasonable, arbitrary, or unconscionable. Id. “A
decision is unreasonable if there is no sound reasoning process that would support that
decision. It is not enough that the reviewing court, were it deciding the issue de novo,
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would not have found that reasoning process to be persuasive.” AAA Ents., Inc. v. River
Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161,
553 N.E.2d 597
(1990).
{¶ 48} We will address Gapen’s claims in a manner that facilitates our analysis.
Evidence Issues
{¶ 49} Gapen contends that several pieces of improper evidence were available to
the jurors during deliberations that he did not know about. The most-cited item by Gapen
is a receipt from a gun shop, an unadmitted piece of evidence. This evidence came to
light in 2002 when Gapen’s post-conviction counsel interviewed several jurors, including
Juror M.M. In his interview, Juror M.M. told Attorney Sandford that a receipt from a gun
shop was found in Gapen’s wallet (an admitted exhibit) in the jury room during
deliberations. The record is unclear as to how the receipt got there, but later interviews
and testimony from other jurors seem to confirm its existence.
{¶ 50} Information also came to light, this time from a 2012 deposition from Juror
M.F., that an envelope of Young’s teeth, though excluded from evidence, allegedly made
its way into the jury room during deliberations. When pressed during deposition, though,
Juror D.N. did not recall seeing this excluded evidence. Further, Juror D.N., in his 2012
deposition, claimed that inflammatory pictures of Young’s bedroom, bed, and teeth, which
were excluded from trial, were present during deliberations.
{¶ 51} It is Gapen’s argument that he was unaware of all the alleged improper
evidence and could not have discovered the items sooner. Therefore, he asserts that the
trial court erred when it overruled his motion for leave to file a motion for a new trial. We
disagree.
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{¶ 52} As to the gun receipt, it is undisputed that Gapen’s legal team learned of
this item in 2002 from an interview Attorney Sandford conducted with Juror M.M. And
while Gapen characterizes this fact as “a passing, cryptic reference,” it still put him on
notice of the possibility that the evidence existed at the time of the trial. At the very least,
the statement gave the defense team something to investigate further.
{¶ 53} The outcome for the other alleged improper evidence is less settled, but
nevertheless compels the same conclusion. The record seems to indicate that Gapen first
learned in 2012 of the possibility that an envelope containing Young’s teeth and excluded
photographs of the crime scenes reached the jury during deliberations. While we have no
reason to believe that Gapen or his team had any idea about these alleged problems
during the trial or shortly thereafter, that is only half of the standard. He must still
demonstrate the second prong – that he could not have learned of the information with
the exercise of reasonable diligence. Lenoir at ¶ 19. We agree with the trial court that
Gapen has failed to meet this burden.
{¶ 54} Having been put on notice in 2002 that the potentially improper evidence
was presented to the jury, it would have been reasonable for Gapen’s team (he has been
represented by multiple lawyers and investigators almost continuously since conviction)
to inquire whether other such evidence had made it into deliberations. Gapen argues that
digging deeper and asking more questions was impossible because the trial court stood
in the way by denying his post-conviction discovery requests. There are, however, at least
two problems with that claim.
{¶ 55} First, as we stated in one of Gapen’s previous appeals in 2005, R.C.
2953.21, the post-conviction relief statute, does not grant a petitioner the right to conduct
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discovery. Gapen I at ¶ 60. The trial court cannot be blamed for following the law. Second,
a lack of compulsory discovery did not limit Gapen’s team from asking follow-up questions
and investigating further. Being told that you cannot subpoena is not the same as being
told that you cannot interview. His team could have learned of the other pieces of improper
evidence from following up on Juror M.M.’s revelations about the gun receipt. Even
Gapen’s federal habeas counsel acknowledged that information from jurors that
unadmitted evidence was present during deliberations “creates a strong inference that
other unadmitted but highly inflammatory trial exhibits … were likewise sent to the jury.”
Gapen’s March 4, 2016 Post-Hearing Brief at 48-49. The inquiry is not just whether Gapen
had knowledge of all the alleged improper evidence – he likely did not know about the
teeth or photographs until 2012 – but rather if he could have learned of it. We agree with
the trial court that he could have.
Juror Issues
{¶ 56} Gapen also argues that he was unavoidably prevented from learning about
potential issues with individual jurors, specifically Jurors D.N. and M.M.
{¶ 57} As to Juror D.N., Gapen’s claims “generally revolve around [the juror’s]
belief in, independent research about, and adherence to, principles of Lex Talionis, under
which the only acceptable penalty upon conviction of murder is death.” Appellant’s brief
at 23. Gapen further argues that Juror D.N. failed to disclose these beliefs in his juror
questionnaire and/or in voir dire.
{¶ 58} While it is true that Juror D.N. did not use the term Lex Talionis in his jury
questionnaire or during voir dire, Gapen should not have been blindsided by Juror D.N.’s
pro-death penalty stance. His jury questionnaire made it very clear that he believed the
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death penalty was “[a]ppropriate in every case where someone has been murdered.”
Further, when asked on the form to rate whether the death penalty should never be used
as the punishment for any murder, Juror D.N. responded “strongly disagree.” Similarly,
when asked to rate whether the death penalty should always be used as the punishment
for every murder, Juror D.N. selected “strongly agree” as his response. These responses
date back to 2001. Juror D.N.’s pro-death penalty views were known to Gapen and his
counsel prior to trial.
{¶ 59} Even more information was discovered in 2002 during post-conviction
interviews done by Gapen’s team. Investigator Hall, who interviewed Juror D.N. in 2002,
confirmed during her 2012 testimony that Juror D.N. expressed the world view that “if one
is guilty of murder, then death is the only appropriate sanction.” Attorney Mooney, another
member of the post-conviction team, described a document that Juror D.N. possessed
during his 2002 interview. “[I]t was like a table … of his world view of how he viewed our
society and culture.” Mooney testified that most of their discussion was centered around
theology and philosophy and how Juror D.N.’s worldview impacted the case.
{¶ 60} In September 2002, Attorney Sandford interviewed Juror M.M. Her affidavit
about the conversation established that “Juror [M.M.] confirmed that while the trial was
proceeding, juror [D.N.] conducted independent research into the biblical meaning of the
death penalty. [Juror D.N.] shared his views with other jurors.” Juror M.M. was not the
only member of the jury to tell Gapen’s post-conviction team about that. Juror R.S. told
investigators that Juror D.N. “conducted his own outside research on the death penalty
and the law and that [he] told the other jurors about his research during deliberations.”
{¶ 61} A pro-death penalty worldview and the possibility of outside research on the
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subject was not the only potentially problematic information about Juror D.N. that Gapen’s
team collected in 2001-2002. Juror D.N. informed Hall and Mooney during his 2002
interview that he had attempted to contact the trial court judge by email after the guilt
phase of the trial was completed. There is no evidence in the record, however, that the
judge received the email.
{¶ 62} Gapen claims that the trial court erred when it denied his motion for leave
to file a motion for a new trial because he was “not aware of the full range of [Juror D.N.’s]
misconduct in 2002; much of the evidence about his strict adherence to the principles of
lex talionis, for instance, only came out in federal habeas discovery proceedings.”
Appellant’s brief at 24. While Gapen did gain some new evidence from deposing Juror
D.N. and from gaining some of his documents, Gapen should have been aware of
potential issues relating to Juror D.N. as early as the spring of 2001 when his trial counsel
received the juror questionnaires. Gapen was certainly aware in October 2002 because
the entire Fourth Ground for Relief in his original post-conviction motion is based on Juror
D.N. It is Gapen’s burden to demonstrate that he and his team had no knowledge of the
existence of the grounds supporting his motion for a new trial, but when it comes to
potential issues with Juror D.N., he had actual knowledge of many of the grounds. At the
very least, his team was armed with enough information to investigate further. And as
stated earlier, the inquiry is not just whether Gapen had knowledge, but rather if he could
have learned of it. We agree with the trial court that he could have.
{¶ 63} Gapen also raises issues with Juror M.M. Specifically, he avers that Juror
M.M. was not truthful with the answers given in either the jury questionnaire or during voir
dire because years later, information came to light showing that an attempted murder-
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suicide took place next door to his home, on property he owned. Gapen argues that the
outcome could have been different, and that Juror M.M. surely had an implicit bias
because of the incident next to his house. He further contends that had this information
been known at the time of the trial, Gapen’s counsel could have questioned Juror M.M.
about it. We disagree because the information regarding the crime is completely irrelevant
to this case.
{¶ 64} Even assuming M.M.’s failure to disclose the attempted murder-suicide
constituted juror misconduct that was not discovered until December 2011, Gapen’s delay
in filing the motion was, as explained below, neither reasonable nor adequately explained.
{¶ 65} While the details of the crime that happened on Juror M.M.’s property were
horrific, it cannot be said he was a victim of the crime in the normal sense of the word. He
did not see the attack (although he reports having seen the surviving victim afterwards),
he was not physically injured by it, and there is no report that he was even financially
harmed from the attempted murder-suicide. Juror M.M. had so little involvement that he
did not consider himself a victim and thus, did not report the incident in his questionnaire
or during voir dire. On the other hand, when he was a victim, he disclosed the information.
{¶ 66} Gapen makes the claim that, when asked during voir dire if anyone had ever
been involved in any disputes about domestic violence, that Juror M.M. should have
disclosed to counsel the incident that happened on his property. He also argues that Juror
M.M. should have spoken up when the jury was asked whether any of them had witnessed
someone losing control or were present when that happened with someone else. Juror
M.M. reasonably did not answer either of those questions because he was not involved
in domestic violence or with someone “losing control.” Just because he owned the
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property where a crime happened does not mean he experienced that crime in any way.
Whether Juror M.M. owned property where an attempted murder-suicide took place was
not relevant to this case, and we reject that argument here.
{¶ 67} Gapen also addresses potential judicial misconduct. During a 2011
interview, Juror M.M. revealed that after the trial concluded, he and a few other jurors
spoke with the trial judge. During their conversation, Juror M.M. stated that the jurors
informed the court about the gun receipt being present during deliberations. The court,
according to Juror M.M., told the jurors that the receipt was “irrelevant.” Gapen alleges
that the trial court should have immediately informed counsel of the gun receipt and the
failure to do so prejudiced him.
{¶ 68} While we agree that the court should have notified counsel after learning of
the receipt, we find that that evidence was discoverable years earlier. Even if it was not,
as we will discuss at length in the next section, there was an unreasonable delay in filing
Gapen’s motion for leave to file a motion for a new trial after discovering this evidence.
The evidence was discovered in 2011 and the motion was not filed until 2013.
{¶ 69} Based on the evidence in the record, all the relevant issues that Gapen
points to were at least discoverable in 2002 and could have been raised in a motion for a
new trial by state post-conviction counsel. It appears, however, that Gapen and his team
made the decision to file for post-conviction relief and discovery instead. Regardless of
the reason, we find that Gapen had knowledge of the ground that would support a motion
for a new trial or could have discovered it in the exercise of reasonable diligence
approximately ten years before the motion was filed.
Unreasonable Delay
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{¶ 70} Even assuming that Gapen could not have learned of the existence of the
facts underlying his motion, the delay in filing the motion for leave was neither reasonable
nor adequately explained.
{¶ 71} Gapen places a great deal of emphasis on the actual knowledge of his
federal counsel and on the rules they were required to follow to litigate his case. He claims
that his federal team did not know about the allegations until 2012 and that federal
regulations did not permit the case to progress any faster than it did. The record, however,
suggests otherwise.
{¶ 72} Federal counsel was appointed on August 11, 2008 to pursue federal
habeas corpus relief, and the writ of habeas corpus was filed in federal court on March
10, 2009. Between the time counsel was appointed and when the writ was filed, Gapen’s
team spent months pouring through the state court records. We know this because Gapen
cited 2002 post-conviction affidavits in the first habeas petition. Based on the information
learned to that point, Gapen’s federal team could have started interviewing jurors. They
were put on notice of the facts that could potentially support a motion for a new trial.
Gapen’s state team was aware of the facts and did not file for a new trial or leave to file,
and the same can be said for his federal team. Instead of starting to at least investigate
immediately, they waited.
{¶ 73} On October 10, 2010, Gapen’s team filed a request for discovery with the
federal district court, 26 months after first being appointed. The request was granted
October 31, 2010, giving them subpoena power, but Gapen’s counsel did not begin its
interviews until December 2011. And, federal depositions were not held until the winter
and spring of 2012. Gapen’s federal counsel then filed his motion for leave to file a
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delayed motion for new trial in state court on October 16, 2013 – over five years after
being appointed to the case and nearly two years after beginning interviews.
{¶ 74} Gapen attributes this delay to the complexities and logistics of practice in
federal court. For instance, Gapen states that federal defenders are not permitted to
practice in state court without permission from the district court and that there are funding
restrictions on federal public defenders litigating in state court. Attorney Rossman testified
that federal public defenders cannot use federal funds for state court litigation without
authorization from the federal district court. Gapen also argues that it was not practical to
begin speaking with jurors until he got federal subpoena power in late October 2011.
{¶ 75} While we understand that there are certain guidelines that federal public
defenders must work within, the rules did not prevent them from investigating further into
what they already knew.
{¶ 76} Gapen’s federal team was aware in at least 2009 (from reviewing affidavits
and notes of state post-conviction and trial counsel) that as soon as the penalty phase
verdict was read, trial counsel, led by Attorney Greer, had suspicions that “[t]he jury, in
my mind, violated its oath, and I think that was clear without any jury affidavits.” Greer
also raised concerns in 2001 that the verdicts were “inconsistent.” By 2009, Gapen’s
federal team also would have been aware of potential misconduct allegations against
Juror D.N. and that the jury was exposed to improper evidence during deliberations. They
could have immediately interviewed or followed up with any of the jurors, but instead there
was a three-year delay.
{¶ 77} Even without the discovery order, though, Gapen’s team could have spoken
with the jurors, and in some cases it did. Attorney Cairns testified that he interviewed
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Jurors D.N. and M.M. in late 2011 and early 2012 without needing subpoenas. He also
testified that he interviewed Jurors H.R. and D.B. without the use of a court order.
Rossman, likewise, testified that Gapen’s team would not have needed permission from
the district court to talk to state court counsel or jurors.
{¶ 78} Even assuming they first learned of the underlying facts in late 2011 or early
2012, Gapen’s federal team would have known that it was not possible to achieve federal
habeas relief until their state claims were exhausted. See 28 U.S.C. §2254(b)(1)(A). But
instead of asking the federal court to stay and abey the habeas petition to go back and
practice in state court, Gapen continued with his habeas litigation. The “go-back” request
was filed on September 30, 2013 and was granted October 8, 2013 – well over a year
after Gapen claims he discovered the underlying facts.
{¶ 79} Gapen’s case is similar to Lenoir, 2d Dist. Montgomery No. 26080, 2015-
Ohio-1045. In that case, Lenoir knew in April 2012 of new evidence upon which he
intended to rely in filing for a new trial. Instead of filing for a new trial, Lenoir kept litigating
in federal court and delayed filing his motion for leave for over a year. We stated, “Lenoir
asserts that he became aware of the telephone conversations between his sister and
Peterson on April 12, 2012. Lenoir, however, did not file his motion for leave to file a
motion for new trial until over a year later, on May 2, 2013. We note that in May of 2012,
Lenoir was focused on pursuing a writ of habeas corpus from the federal court based on
the recording of the telephone conversation. However, we cannot excuse the lengthy
delay in filing the motion for leave with the trial court. … Lenoir did not need permission
from the federal court to file his motion for leave in the trial court.” Id. at ¶ 24.
{¶ 80} The same is the case here. Gapen could have filed his motion for leave in
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state court in 2009, or in early 2012 after interviews and depositions were done. Instead,
much like Lenoir, it appears Gapen’s strategy was to play things out in federal court. It is
also true, like in Lenoir, that Gapen’s counsel did not need permission from the federal
court to file his motion for leave in the trial court. Gapen’s counsel admitted as much at
his August 29, 2014 motion hearing when he was asked directly by the trial court.
Court: There’s nothing, procedurally, that if information is obtained, that, while he’s
involved in any habeas or federal court proceedings, that prevent him from filing
something in the state court.
Counsel: There would not be necessarily a literal prohibition. … [I]f the question is
literally procedurally, there’s nothing.
{¶ 81} The trial court did not abuse its discretion in finding that the delay was
unreasonable. That decision aligned with the Criminal Rules’ objective of “securing the
speedy and sure administration of justice and eliminating unjustifiable delay … by
discouraging a defendant from waiting to move for leave while the evidence against him
dissipates or disappears.” State v. Warren, 2d Dist. Montgomery No. 28092, 2019-Ohio-
3522. See Crim.R. 1(B). “Delays in presenting evidence once discovered undermine the
overall objective of the criminal rules. Allowing a defendant to drag the process out while
the evidence and recollections of witnesses become increasingly stale defies the very
purpose of the criminal rules.” State v. McConnell, 2d Dist. Montgomery No. 24315, 2011-
Ohio-5555, ¶ 18. (Internal citations omitted).
{¶ 82} Gapen failed to prove that he was unavoidably prevented from discovering
the grounds for his claims of alleged juror and judicial misconduct, juror bias, and
consideration of unadmitted evidence. He has likewise failed to demonstrate that he acted
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within a reasonable time or adequately explained the delay. Therefore, the trial court did
not abuse its discretion when it overruled Gapen’s motion for leave to file a delayed
motion for a new trial. Gapen’s first and second assignments of error are overruled.
III. Review of the Merits
{¶ 83} In his third assignment of error, Gapen argues that the trial court erred by
not fully engaging in a merit review of the evidence.
{¶ 84} We have previously stated that “[a]lthough a defendant may file his motion
for a new trial along with his request for leave to file such motion, the trial court may not
consider the merits of the motion for a new trial until it makes a finding of unavoidable
delay.” Lanier, 2d Dist. Clark No. 2009-CA-84, 2010-Ohio-2921, ¶ 17, citing State v.
Stevens, 2d Dist. Montgomery Nos. 23236 & 23315,
2010-Ohio-556, ¶ 11. Accord State
v. Wilson, 2d Dist. Montgomery No. 17515,
1999 WL 173551, *1 (March 31, 1999) (“If it
is not found that the defendant was unavoidably prevented from discovering the new
evidence or from filing his motion for a new trial, the trial court is precluded from
considering the untimely motion.”).
{¶ 85} Gapen cites a new case from the United States Court of Appeals, Sixth
Circuit, Nian v. Warden, 994 F.3d 746 (6th Cir. 2021), to support his proposition that a
decision on the merits was warranted. While there appear to be some factual similarities,
we find that there are important distinctions that cut against Gapen’s conclusion.
{¶ 86} In Nian, the defendant was accused and convicted of multiple counts of
rape. Soon after the trial, however, Nian alleged (by way of a juror affidavit) that a juror
had “improperly introduced extraneous information – including his criminal record and
national origin – into deliberations.” Id. at 750. After holding an evidentiary hearing on the
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issue, the trial court excluded the whistle blower/juror’s testimony under Evid.R. 606(B),
which states: “A juror may testify on the question whether extraneous prejudicial
information was improperly brought to the jury’s attention or whether any outside influence
was improperly brought to bear on any juror, only after some outside evidence of that act
or event has been presented.” The Sixth Circuit ultimately held that the exclusion of the
juror’s testimony under Evid.R. 606(B) was a constitutional error and ordered the case
remanded back to the state trial court.
{¶ 87} While the factual predicates of Gapen’s case and Nian are similar (a juror
allegedly brought in outside information into deliberations), the procedural postures are
very different. In Nian, the whistleblower juror alleged juror misconduct in the weeks
following the verdict and Nian promptly filed a motion for a new trial – well within the time
contemplated by Crim.R. 33. The court then conducted a hearing on the allegations
(within a month of the conclusion of the trial) and decided on the merits of the claim.
{¶ 88} In this case, the jurors were interviewed more than a year after the trial –
outside of the Crim.R. 33 timeframe – and therefore Gapen had to demonstrate that he
was unavoidably prevented from filing his motion within the time limits. Only if he was
successful in clearing this preliminary hurdle could the trial court in this case assess the
merits. The trial court did not believe Gapen reached the required threshold and therefore
did not decide on the merits. Evid.R. 606(B) has no bearing on this case. Additionally,
Gapen’s cited case would only be persuasive authority, at best. “[T]he decisions of federal
courts constitute persuasive authority only and are not binding on this court.” State v.
Prom, 12th Dist. Butler No. CA2004-07-174, 2005-Ohio-2272, ¶ 22. We find Nian to be
distinguishable and decline to follow it.
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{¶ 89} Given the trial court’s conclusions, it was not permitted to rule on the merits
of Gapen’s claims. The trial court did not err, and the assignment of error is overruled.
IV. Conclusion
{¶ 90} The trial court did not abuse its discretion when it found that Gapen failed
to prove by clear and convincing evidence that he was unavoidably prevented from
discovering the grounds for his claims. Likewise, the trial court did not abuse its discretion
when it found Gapen had failed to demonstrate that he acted within a reasonable time or
adequately explained the delay in filing his motion for leave to file a motion for a new trial.
Finally, the trial court did not abuse its discretion when it did not rule on the merits of
Gapen’s claims. The assignments of error are overruled, and the judgment of the trial
court will be affirmed.
.. . . . . . . . . . . . .
TUCKER, P. J. and HALL, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Andrew T. French
Allen L. Bohnert
Adam M. Rusnak
Hon. Mary Katherine Huffman
