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Supreme Court Clarifies Requirements for New DNA Testing of Biological Material In Criminal Cases

Image of a DNA helix

Supreme Court ruling reverses the Portage County Court of Common Pleas' order denying Noling's application for new DNA testing of material taken from the scene of the 1990 murders of Bearnhardt and Cora Hartig.

Image of a DNA helix

Supreme Court ruling reverses the Portage County Court of Common Pleas' order denying Noling's application for new DNA testing of material taken from the scene of the 1990 murders of Bearnhardt and Cora Hartig.

The Supreme Court of Ohio ruled today that a trial court may not reject an application for new DNA testing of biological material based on a  previous denial of postconviction DNA testing without first considering the statutory definition of a “definitive DNA test” and applying the amended criteria for postconviction DNA testing adopted by the General Assembly in 2010.

In a 5-2 decision authored by Justice Judith Ann Lanzinger, the court also upheld as constitutional a provision of state law that confers exclusive jurisdiction on the Supreme Court of Ohio to hear appeals of a trial court’s denial of postconviction DNA testing in death penalty cases.

Applying those holdings to the case of death-row prisoner Tyrone Noling, the court: 1) affirmed as a threshold matter that it had jurisdiction to review on direct appeal a trial court’s order denying Noling’s application for postconviction DNA testing,  2) reversed the Portage County Court of Common Pleas’ order denying Noling’s application for new DNA testing of material taken from the scene of a 1990 double murder, and 3) ordered the trial court to reconsider Noling’s application for new DNA testing in light of the 2010 amendments to the state’s postconviction testing statutes.

Noling was charged with and convicted of the aggravated murders of Bearnhardt and Cora Hartig at their home in Portage County. He was sentenced to death on two counts, and the convictions and sentences were upheld on appeal. The issues in this case arise from postconviction motions.

Police investigating the crime had found a cigarette butt in the Hartigs’ driveway and performed DNA testing of saliva taken from the cigarette.  The results of those tests were submitted at trial and excluded Noling and all of his codefendants as sources of the DNA on the cigarette. In September 2008,  Noling applied to the common pleas court for additional DNA testing of the biological material on the cigarette found at the murder scene. The court denied that application based on a provision of the state’s postconviction testing statute that bars re-testing of biological evidence if a prior “definitive” test has already been performed.  Finding that the earlier DNA test results had been “definitive” because they positively excluded Noling and his codefendants as sources of the saliva on the cigarette, the trial court held that it could not authorize additional testing.  

But in July 2010, the General Assembly enacted S.B. 77, legislation that changed the definition of a prior “definitive” DNA test to allow retesting of biological evidence if the defendant could show that because of advances in testing procedures, a new test could disclose information that an earlier test could not, and that there was a strong probability the new information would be “outcome determinative.”

On December 28, 2010, Noling filed a second application for additional DNA testing of the cigarette butt. In his application, he asserted that information not disclosed by the state at trial had identified other suspects, including a man named Daniel Wilson. Noling also claimed that because of advances in DNA technology, it is now possible to positively identify the individual whose DNA is on the cigarette butt and that DNA identification of one of the previously undisclosed suspects would be “outcome determinative” by identifying the true killer.

In March 2011 the common pleas court denied Noling’s second application for new testing based on R.C. 2953.72, which states that if an offender’s prior application for postconviction DNA testing has been rejected for failure to meet statutory criteria, “the court will not accept or consider subsequent applications.”  The trial court ruled that, because Noling’s 2008 application for new testing had been denied based on the existence of a prior “definitive” DNA test, his 2010 application could not be considered. 

Noling sought and was granted Supreme Court review of the trial court’s ruling.

Writing for the majority in today’s decision, Justice Lanzinger began by clarifying the respective jurisdictions of the Ohio Supreme Court and the state’s intermediate courts of appeals in cases involving the death penalty, and affirming as constitutional a provision of the state’s postconviction testing statute, R.C. 2953.73(E)(1), that confers exclusive authority on the Supreme Court to review trial court decisions denying an inmate’s request for postconviction DNA testing in death penalty cases.

Citing the language of two different sections of the Ohio Constitution that were amended by voters in a 1994 ballot initiative, Justice Lanzinger wrote:  “(W)hen reading Article IV, Sections 2(B)(2)(c) and 3(B)(2) of the Ohio Constitution in pari materia (in coordination with each other), we conclude four things.  First, the Ohio Constitution grants the supreme court exclusive appellate jurisdiction for direct review of judgments in which the sentence of death is imposed.  Second, the constitution specifically excludes the courts of appeals from the direct review of those same judgments. Third, this court has concurrent appellate jurisdiction with courts of appeals to review postconviction judgments and final orders in cases in which the death penalty has been imposed.  Fourth, because grants of jurisdiction to the courts of appeals in death-penalty cases are only ‘as provided by law,’ the General Assembly may limit the court of appeals’ jurisdiction.”

“(T)he 1994 amendment to Article IV, Section 2(B)(2)(c) of the Ohio Constitution granted this court jurisdiction over the direct appeal of cases in which the death penalty is imposed.  Thus, the General Assembly’s provision in R.C. 2953.73(E)(1) that we have direct appellate review of the denial of an application for postconviction DNA testing in cases where the offender was sentenced to death is within the constitutionally defined jurisdiction of this court.  ...  Because courts of appeals have such jurisdiction only ‘as may be provided by law,’ the General Assembly may limit that jurisdiction in cases in which the death penalty is imposed.  The General Assembly acted within its authority when it limited a courts of appeals’ review to the denial of DNA-testing applications in cases in which the death penalty was not imposed.  We therefore hold that R.C. 2953.73(E)(1) is constitutional.”

Turning to the merits of the trial court’s action in denying Noling’s second application for additional DNA testing of the cigarette butt, Justice Lanzinger wrote: “The DNA-testing statutes were amended ... when 2010 Sub.S.B. No. 77 (S.B. 77) was enacted on July 6, 2010. ... Noling’s second application for DNA testing of the cigarette butt was submitted after S.B. 77 was enacted. ... Noling argues that the trial court failed to consider the legislative changes that defined ‘definitive DNA testing’ before it denied his second application under R.C. 2953.72(A)(7). Noling contends that R.C. 2953.71(U) significantly changed and expanded the criteria for permitting further DNA testing.  We agree.”

“The trial court rejected Noling’s second application for testing on grounds that R.C. 2953.72(A)(7) required rejection of the second application because his first application had been denied. But a subsequent application is barred under R.C. 2953.72(A)(7) if a previous application was rejected because the offender did not satisfy the acceptance criteria described in R.C. 2953.72(A)(4). Division (A)(4) references the criteria established in R.C. 2953.74 to determine whether to accept or reject the application. The threshold criterion requires a court to reject the application if a prior definitive DNA test has been conducted. ...  Therefore, the new definition of ‘definitive DNA test’ is relevant in determining whether Noling’s previous application was properly denied.”

“The trial court found that the earlier DNA testing was definitive because it had excluded Noling and his codefendants as smokers of the cigarette. Under R.C. 2953.71(U), however, a prior test is not definitive and Noling would be entitled to further testing of the DNA if he could show ‘by a preponderance of the evidence that because of advances in DNA technology there is a possibility of discovering new biological material from the perpetrator that the prior DNA test may have failed to discover.’ Thus, the trial court could not reject without further inquiry Noling’s second application solely because he and his codefendants were excluded as smokers of the cigarette. The DNA-testing statutes now permit testing to positively identify the DNA’s source. R.C. 2953.74(E) allows the trial court to order biological material from the crime scene to be compared to the combined DNA index system maintained by the Federal Bureau of Investigation or compared to any identified person to determine whether that person is the DNA source.”

“In support of his second application for DNA testing, Noling had submitted evidence that Wilson and other individuals were alternative suspects in the Hartig murders. But neither Wilson’s DNA, nor that of any of the other suspects, was compared to the DNA on the cigarette. The trial court failed to consider Noling’s application in the context of the new statutory requirements − whether there is a possibility of discovering new biological material that is potentially from the perpetrator that the prior DNA test may have failed to discover. Therefore, the court erred by failing to apply the definition set forth in R.C. 2953.71(U) before dismissing Noling’s second application under R.C. 2953.72(A)(7).  We reverse and remand to the trial court for consideration of the second application under the current versions of the statutes.”

Justice Lanzinger’s opinion was joined by Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Sharon L. Kennedy and William M. O’Neill.

Justice Terrence O’Donnell entered a dissent, joined by Justice Judith L. French, stating that in his view “(T)he Ohio Constitution mandates that in cases in which the death penalty has been imposed, the Supreme Court has appellate jurisdiction only over a direct appeal from the judgment imposing the sentence of death.  And, because the Ohio Constitution vests jurisdiction in courts of appeals to review the final judgments of courts inferior to a court of appeals, the General Assembly does not have authority to grant that jurisdiction to this court to review a direct appeal from a trial court’s denial of postconviction DNA testing sought by an offender who has been sentenced to death.  Thus, R.C. 2953.73(E), which purports to grant authority to this court to review a direct appeal from the denial of postconviction DNA testing, is unconstitutional.”

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.

2011-0778. State v. Noling, Slip Opinion No. 2013-Ohio-1764.
Portage App. No. 95 CR 220.  Judgment reversed and cause remanded.
O’Connor, C.J., and Pfeifer, Lanzinger, Kennedy, and Klatt, JJ., concur.
O’Donnell and French, JJ., dissent.
William A. Klatt, J., of the Tenth Appellate District, sitting for O’Neill, J.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2013/2013-Ohio-1764.pdf

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