Login | March 20, 2018

Death row inmate’s appeal earns access to DNA test result

Supreme Court
Public Information Office

Published: March 13, 2018

When a judge fails to comply with the state DNA testing law, the Ohio Supreme Court has jurisdiction to hear an offender’s appeal, the state’s high court ruled today.

The Court ruled 5-2 that a laboratory report’s conclusions about a DNA test are not equivalent to actual test results. Therefore, the trial court partially failed to meet the requirements of R.C.2953.81, which states that DNA testing results must be provided to an offender.

The ruling came in the case of death row inmate Tyrone Noling. The Supreme Court ruled that Noling is entitled to the DNA profile of an unknown male, which was obtained by testing a cigarette butt found at a 1990 crime scene. The decision marks the third time the Court has issued an opinion on a postconviction relief appeal from Noling.

Writing for the Court majority, Justice Patrick F. Fischer explained that, while the law does not define the “results of the testing,” it is clear from reading the entire Ohio Revised Code section regarding DNA tests that “results of the testing” means the DNA profile developed by a crime lab after testing the evidence. The Court rejected Noling’s request for additional materials, such as lab notes, and it upheld a trial judge’s decision not to conduct additional tests on other crime scene evidence.

Chief Justice Maureen O’Connor and Justices Terrence O’Donnell and Judith L. French joined the opinion. Tenth District Court of Appeals Judge William A. Klatt, sitting for former Justice William M. O’Neill, also joined the majority.

Justices R. Patrick DeWine and Sharon L. Kennedy dissented. Justice DeWine wrote that the law is crafted to narrowly limit appeals to three specific rulings on DNA tests by a trial court, and what constitutes “the results” of a DNA test is not one of them.

Convict Seeks to Prove Innocence

Noling was found guilty of the aggravated murders of Bearnhardt and Cora Hartig in their Portage County home in 1990. He was sentenced to death, and the Supreme Court affirmed his conviction in 2002. He has filed several actions in federal and state courts, including requests for DNA testing of items found at the crime scene. Noling claims that with more-advanced DNA testing than was available during his 1995 trial, the evidence may point to another suspect.

Noling maintains his innocence and has spent nearly two decades attempting to link DNA on a cigarette butt found on the driveway of the Hartig home to other evidence, including shell casings from a fired weapon and ring boxes in the Hartig home.

Prior to his initial trial, a DNA test was conducted on the cigarette butt, and it excluded Noling and the others tried with him for the murders. In 2008, the trial judge rejected retesting of the cigarette butt. In 2010, Noling sought again to have the cigarette butt tested, claiming that newly discovered evidence pointed to other suspects. One other suspect was Daniel Wilson, who was described to authorities by his foster brother as being a violent person who broke into homes at the time of the Hartig murders. Noling claimed that previous DNA analysis of the cigarette butt did not exclude Wilson as a source of the DNA.

Noling also identified other possible suspects, including the Hartigs’ insurance agent, who defaulted on a loan from the Hartigs. Noling argued that more-advanced DNA testing could possibly match the unidentified DNA on the cigarette butt to one of the suspects, whom prosecutors had not disclosed to Noling prior to his original trial. The trial court again denied the testing request, and Noling appealed.

Second DNA Test Ordered, New Requests Added

In 2013, the Ohio Supreme Court ruled that a change in state law permits the trial court to order the testing requested by Noling. The trial court was directed to consider if biological material from the cigarette butt could be used to identify another suspect. (See 2013 Supreme Court Clarifies Requirements for New DNA Testing of Biological Material in Criminal Cases.)

As the case returned to trial court, Noling amended his DNA testing request to include the shell casings collected from the Hartigs’ kitchen and ring boxes from their bedroom. He also asked that the shell casings be submitted to the FBI’s National Integrated Ballistic Information Network (NIBIN) for a possible match with the missing murder weapon.

Prosecutors objected, arguing the shell casings and ring boxes had been contaminated and were not suitable for DNA testing. The state noted the evidence was collected and examined at a time before standards were put in place to handle evidence without contaminating DNA. The state also objected to submitting the casings to NIBIN because the request was unrelated to the DNA test request.

The trial judge rejected the request to submit the shell casings to the federal database, stating that there was no procedure in state law that allowed Noling to make the request.

Test Results Disputed

The trial court ordered the Ohio Bureau of Criminal Investigation (BCI) to collect DNA evidence from the cigarette butt and to compare the DNA profile created from the evidence to DNA profiles in the Combined DNA Index System (CODIS), a database created by law-enforcement agencies. BCI confirmed that Wilson’s DNA was in the database that was searched. The DNA profile from the cigarette butt did not match anyone in the CODIS database, including Wilson’s.

The state provided Noling with a one-page report that explained how the DNA profile was created from the cigarette butt, but did not provide him the DNA profile that BCI created.

Noling asked the court to allow Orchid Cellmark Laboratories (Cellmark) to test the shell casings and ring boxes for DNA, stating that the company was better equipped than BCI to determine if it could gather DNA from the items. The trial court directed BCI to report whether there was the quality and quantity of evidence available to conduct DNA tests, and BCI found that the shell casings and ring boxes were contaminated and unsuitable for testing. The trial court dismissed Noling’s application for testing based on BCI’s report.

Noling appealed to the decision to the Supreme Court. At the time of his appeal, R.C. 2953.73(E)(1) provided death penalty recipients with only a right to request that the Supreme Court hear an appeal of a denied DNA testing request. Noling argued the law was unconstitutional, and in 2016 the Court agreed. (See Post-Conviction DNA Testing Appeals Process Unconstitutional.) While the Court ruled Noling had a right to appeal, it did not rule at that time on his claims or whether the law allowed the Court to rule on the three testing requests.

Law Limits Appeals of DNA Issues

Justice Fischer’s opinion explained that when there is a request for DNA testing, the offender must sign an acknowledgment form that states the common pleas court has “sole discretion” to decide whether the offender is eligible to make the DNA request. If the offender meets the criteria for having a request accepted, R.C. 2953.72(A)(8) provides that, with three exceptions, the discretionary rulings of the common pleas court are not appealable to any other court. The Court listed the three discretionary decisions that are appealable:

• whether an individual is an eligible offender to request a test

• whether an application meets the criteria to be accepted

• whether an application should be accepted.

Court Finds Duty to Provide Full Testing Report

The Court held that R.C. 2953.81(C) states that a court or testing authority “shall provide a copy of the results of the testing” to the prosecuting attorney, the Ohio Attorney General, and the offender. The Court explained that Noling’s challenge to the trial court’s failure to provide him a full report of the DNA test is a claim that the court did not comply with a mandatory duty to provide the results. That makes the issue appealable, the majority concluded.

“As Noling is not appealing the manner in which the provision was carried out, but whether the provision was carried out, this court has jurisdiction to hear the claim,” the Court stated.

The Court determined that the law required BCI to create a DNA profile by testing the sample taken from the cigarette butt and to compare “the results of the testing” to the CODIS database. This process checked for DNA matches with the profiles contained in CODIS. Because the only data that can be compared with the DNA profiles in CODIS is another DNA profile, “results of the testing” must be a reference to the DNA profile, the Court ruled. The Court ruled that, as a result, Noling is entitled to only the DNA profile created by BCI and no more.

The Court stated the Noling is not entitled to the lab reports or other underlying scientific data that BCI used to produce the profile. It also ruled that the discretionary decisions to deny sending the casings to test against the FBI’s NIBIN, the denial of providing DNA to Cellmark, and the rest of Noling’s testing requests are not the issues the Supreme Court has jurisdiction to hear on appeal.

The Court remanded the case to the trial court to ensure that Noling is provided with the DNA profile of the unknown male suspect but no more, and it dismissed the remainder of Noling’s claims.

Dissent Would Fully Reject Appeal

In his dissenting opinion, Justice DeWine wrote the legislature created the procedure to allow an offender to obtain postconviction DNA testing in limited circumstances, and because it is a special procedure, there is no general right to challenge the trial court’s determinations. Rather, the only right to appeal is that which is set forth specifically in the statute at issue, R.C. 2953.72(A)(8). Justice DeWine wrote that the trial court’s decision about what constitutes “the results of the testing” does not fall within the limited number of trial-court determinations from which the legislature has authorized an appeal. As a consequence, he concluded, “this court lacks jurisdiction to consider Noling’s appeal on that issue.”

Justice DeWine noted that an offender who believes the trial court failed to carry out a mandatory duty is not without options to contest the court’s work. He stated the offender could seek a writ of mandamus from an appeals court to direct a lower court to carry out a duty.

The case is cited 2014-1377. State v. Noling, Slip Opinion No. 2018-Ohio-795.