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Man who murdered girlfriend denied petition for postconviction relief

JESSICA SHAMBAUGH
Special to the Legal News

Published: November 26, 2014

The 10th District Court of Appeals released an opinion recently denying postconviction relief for a man found guilty of murdering his girlfriend.

The three-judge appellate panel affirmed the Franklin County Court of Common Pleas decision to deny Kevin Tolliver postconviction relief.

In his latest motion for relief, Tolliver claimed that his counsel was ineffective for failing to show that his girlfriend was suffering from Paxil withdraw that caused her to kill herself. He also asserted that newly discovered evidence showed a jailhouse informant fabricated the testimony against him.

Case summary states that a jury found Tolliver guilty in June 2002 of shooting his girlfriend in the head in the apartment they shared.

During that jury trial, the state presented evidence that Tolliver and Claire Schneider started living together in the Olentangy Village Apartment Complex in September 2001.

At the time, Schneider was taking Paxil to help control her moderate depression. Her prescription for that medication was last filled on Nov. 24, 2001.

The state also showed that Schneider was planning a trip to the Dominican Republic as part of her international development program at Ohio State University. She told co-workers she planned to meet Tolliver there for a week’s vacation at the end of her trip.

On Dec. 29, 2001, about a week before Schneider was scheduled to leave for her trip, she and Tolliver went to a night club. Shortly after they returned to their apartment, a neighbor heard a male’s voice screaming “No, no. Don’t don’t. Oh, please. Please.”

The woman called police but the responding officer was unable to locate the source of the disturbance and left the scene.

About 30 minutes later, Tolliver called his ex-wife and insisted that she bring their daughter to his apartment. The woman complied and said when she got to the home she saw blood smeared on the front door, Tolliver was dressed in a blood-stained robe and had blood on his hands and legs. She said there was also blood on the living room wall and kitchen floor.

The woman returned her daughter to the car and Tolliver told her he was “really in trouble.” She said Tolliver was crying hysterically and said he was going to kill himself.

Afraid that he would kill himself in front of their daughter, the woman drove to the other side of the parking lot and called police.

When the officers arrived, they found blood throughout the apartment, including on Tolliver. They found Schneider’s body in the bathroom and Tolliver told them “she shot herself.” They also located the gun used in the killing in the bathroom along with an envelope containing $3 and a note stating “she did not know gun was loaded. I loved her. Could not find the phone.”

During questioning, Tolliver refused to waive his rights, saying he was not sound of mind because his girlfriend had just died. Nevertheless, he told detectives that he and Schneider were discussing their trip, planning to get married and addressing her concerns that she may have been pregnant. He said she was worried what her family would think.

Specifically, he said she was saying “What do you want me to” when the gun went off and he turned around to see her falling at his feet. He said he tried to put pressure on the wound but could not find it.

The autopsy revealed that Schneider died of a gunshot that entered the back of her mouth from her lower left side. It was noted that she was left handed. It also showed that someone may have performed CPR on her after the shooting.

Investigators determined that Tolliver’s shirt contained blood spatter indicating he would have been at close range at the time Schneider was shot. Although conceding that the spatter could have come from Schneider’s mouth while Tolliver performed CPR, the expert witness stated that it was more likely that Tolliver was standing directly behind his girlfriend when she was shot.

The state also called a jailhouse informant who testified against Tolliver in exchange for a significantly reduced sentence in his own case. He said Tolliver told him he shot his girlfriend during an argument about her trip to the Dominican Republic and that Tolliver planned to cry in front of the jury so they would believe that she killed herself.

Tolliver also called a jailhouse informant who testified that the state’s witness seemed eager to testify against Tolliver to save himself and it seemed like the story may have been fabricated.

Nevertheless, the jury found Tolliver guilty of the murder and the trial court sentenced him to 18 years to life in prison. The appellate court affirmed that decision.

In 2003, Tolliver filed his first petition for postconviction relief. It was denied and that decision was upheld on direct appeal.

He then subsequently filed a second petition for postconviction relief arguing that Schneider killed herself because of “Paxil withdrawal syndrome.” He also provided affidavits from more inmates stating that the state’s jailhouse informant fabricated the evidence against him.

The trial court denied that petition without a hearing and he again appealed to the 10th District.

“Appellant argues the trial court abused its discretion when it denied appellant’s second postconviction petition without an evidentiary hearing and without issuing findings of fact and conclusions of law in support of its decision,” Judge Betsy Luper Schuster wrote for the appellate court.

However, the reviewing judges noted that a trial court may not review a second postconviction petition unless the defendant was unavoidably prevented from discovering the evidence or the U.S. Supreme Court recognizes new rights that retroactively apply to the defendant.

The judges held that Tolliver had not been given any new rights.

They next determined that he was not unavoidably prevented from calling the other inmates as witnesses and in fact did call one of them. They further noted that Tolliver failed to show how more witnesses would have changed the outcome of his trial.

“There was ample other evidence at trial supporting appellant’s conviction, and appellant does not demonstrate that no reasonable factfinder would have found him guilty had he been able to call these additional witnesses in order to undermine (the informant’s) credibility,” Luper Schuster stated.

With regard to the Paxil theory, the judges ruled that Tolliver “presented no medical expert opinion or analysis specifically linking Schneider’s death to suicide triggered by ‘Paxil withdrawal syndrome.’”

They maintained, therefore, that his counsel was not ineffective in failing to raise the argument.

“Because appellant’s petition and supporting documents did not adequately demonstrate sufficient operative facts establishing substantive grounds for relief with regard to his ‘Paxil withdrawal syndrome’ theory, he was not entitled to a hearing, and the trial court did not err in ruling on appellant’s petition without a hearing,” Luper Schuster concluded.

Judges Susan Brown and William Klatt concurred.

The case is cited State v. Tolliver, 2014-Ohio-4824.

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