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Latest appeal by man sent to death row in 1985 rejected

DAN TREVAS
Supreme Court
Public Information Office

Published: December 5, 2018

Ohio law did not permit a Cuyahoga County trial court to consider a post-conviction petition from a man on death row since 1985, who was convicted of rape, burglary, and murder, the Ohio Supreme Court ruled recently. The high court reversed decisions by the trial court to vacate the man’s rape charges and order a new trial for the remaining charges.

The Supreme Court ruled the trial court did not have jurisdiction to consider Anthony Apanovitch’s fourth post-conviction petition filed in 2012 in an attempt to overturn his conviction for the rape, aggravated burglary, and aggravated murder of Mary Anne Flynn. Apanovitch’s post-conviction petition was premised on DNA testing completed in 2000 that was not available at the time of his trial.

Writing for the Court majority, Justice Patrick F. Fischer noted that Apanovitch has unsuccessfully pursued several avenues to overturn his conviction, including several post-conviction petitions. Justice Fischer recognized that “the right to file a post-conviction petition is a statutory right, not a constitutional right,” which means that any right to post-conviction relief must come from Ohio statutes. The majority determined that Apanovitch’s latest petition did not meet the criteria under Ohio law for a state court to consider it.

Justices Judith L. French, R. Patrick DeWine, and Mary DeGenaro joined Justice Fischer’s opinion.

Justice Terrence O’Donnell concurred in part and dissented in part. He took issue with the Court majority’s decision to remand the case to the trial court for further proceedings, claiming the matter has come to an end. Chief Justice Maureen O’Connor joined Justice O’Donnell’s decision.

Justice Sharon L. Kennedy separately concurred in part and dissented in part without a written opinion.

Nurse Murdered in Home

Flynn, a nurse, owned a duplex where she lived in one unit and rented the other. In August 1984, the duplex renters heard Flynn’s door slam shortly after she arrived home one night at 10 o’clock. They heard more noises around midnight, but no witness reported seeing or hearing anything after that.

Flynn was discovered the next day face down, naked on her bed with her hands tied behind her back. She had been severely beaten and died from strangulation. An autopsy revealed sperm in her mouth and vagina.

Investigators focused on Apanovitch because earlier that summer he had been hired to paint part of Flynn’s house. Witnesses testified that Flynn was fearful of one of the painters, and Apanovitch was seen outside her home on the afternoon before the murder asking to paint her windowsills. Apanovitch reportedly then made a sexually suggestive comment about Flynn to a coworker. When questioned about the murder, Apanovitch could not account for his whereabouts or for a scratch on his face that he received the night of the murder. Investigators found that Apanovitch’s blood type could not be excluded from the source of sperm recovered from Flynn’s body.

Painter Charged with Murder

Apanovitch was charged with aggravated murder, aggravated burglary, and two counts of rape — one based on the sperm found in Flynn’s vagina, and the other for the sperm found in her mouth. A Cuyahoga County jury found him guilty on all counts and recommended a death sentence. The trial court imposed the death sentence. On appeal, both the Eighth District and the Supreme Court affirmed Apanovitch’s convictions and death sentence.

Subsequent DNA Testing Occurs

When conducting Flynn’s autopsy, a forensic pathologist with the Cuyahoga County medical examiner’s office created slides that contained specimens from Flynn’s mouth and vagina. DNA testing of the specimens was not available for trial in 1984.

In 1988, an attorney for Apanovitch attempted to obtain Flynn’s records from the medical examiner’s office. The slides could not be found and were presumed to be lost or destroyed.

In 1991, three slides, one vaginal slide and two oral slides, were located. The slides were sent to a California DNA testing firm, which determined that two slides, the vaginal slide and one oral slide, could not be analyzed. It was able to perform a partial DNA test on the other oral slide. At the time, Apanovitch’s DNA was not available for the lab to do any type of comparison.

In 2000, an assistant Cuyahoga County prosecuting attorney asked the medical examiner to conduct DNA testing of “any trace evidence or samples” related to Flynn’s murder. The office tested the slides that had been returned from the California DNA testing firm and found there was not sufficient material on the slides to obtain a clear DNA profile.

In 2006, the California DNA testing firm further analyzed the specimen taken from Flynn’s mouth. It had retained and frozen the sample and kept it in its DNA archive. The California DNA testing firm found the DNA profile of the sample matched about one in 285 million Caucasian males. At the time, Apanovitch was pursuing a federal court appeal of his conviction and as part of the proceedings, the federal court ordered Apanovitch to provide a DNA sample. The California DNA testing firm concluded that Apanovitch could not be excluded as the source of sperm taken from Flynn’s mouth.

Post-conviction Proceedings Turned to 2000 Test

While contesting the findings of the 2006 DNA test, Apanovitch hired Dr. Rick Staub, a DNA expert, to review the 2000 test of the sperm in Flynn’s vagina that was tested by the medical examiner. Unlike the medical examiner, Staub testified at a post-conviction hearing that the sample from the vaginal slide was useful and the test showed that Apanovitch’s sperm was not on the slide. The DNA of at least two other unknown males were on the slide, Staub said.

The state’s expert witness, Dr. Elizabeth Benzinger, testified that the sample could have been contaminated. But she did not testify as to whether Apanovitch was excluded as a contributor to the sample. Because Benzinger did not contradict Staub’s opinion, the trial court acquitted Apanovitch of the vaginal rape charge. The trial court then dismissed the oral rape conviction and ordered a new trial on the murder and burglary counts.

Cuyahoga County prosecutors appealed the decision to the Eighth District Court of Appeals, which affirmed the trial court’s decision. The state then appealed to the Ohio Supreme Court, which agreed to hear the case.

Court Focuses on Law

After reviewing the state’s claims of errors made by the lower courts, the Supreme Court asked the parties to address whether the trial court had jurisdiction to consider the appeal.

The majority explained that R.C. 2953.23(A) allows a prisoner to file only one post-conviction petition in most situations, and this was Apanovitch’s fourth. However, there are exceptions that allow for additional petitions if certain circumstances are met, the Court explained. One of the conditions, R.C. 2953.23(A)(1)(b), requires the prisoner to prove by clear and convincing evidence the conviction was a result of a “constitutional error at trial.”

Apanovitch claimed he met the requirement by asserting he is actually innocent of a rape charge. The majority noted that the U.S. Supreme Court has ruled that an “actual-innocence claim” under the U.S. Constitution is not a constitutional claim, and in this case, Apanovitch cannot use the argument to prove there was a constitutional error at his trial.

Apanovitch did not raise any other arguments of constitutional errors under the Ohio Constitution, and the Court concluded he did not qualify under R.C. 2953.23(A)(1)(b) to have his post-conviction petition heard by the trial court.

Appeal Based DNA Testing Considered

Apanovitch’s second argument that would allow for his latest petition was based on his interpretation of R.C. 2953.23(A)(2), which allows a court to consider an additional post-conviction petition involving the testing of DNA evidence.

The majority opinion explained that the trial court interpreted the law broadly to allow the challenge because it “involves the testing of DNA.” The Court wrote that the law only provides trial courts jurisdiction over a “select class of DNA-based actual innocence claims,” and that Apanovitch did not meet those requirements.

Because the trial court could not entertain Apanovitch’s post-conviction petition, the Supreme Court vacated the trial court’s judgment acquitting Apanovitch of the rape charges and ordering the new trial. Because the Court vacated the trial court’s ruling, it also vacated the Eighth District’s decision affirming the trial court.

The Court remanded the case to the trial court for the limited purpose of determining if further proceedings are necessary and to resolve any remaining issues.

Concurrence Questions Remand

Justice O’Donnell concurred in the majority’s decision to affirm the convictions in this case, but noted that because the Ohio Supreme Court has ruled that the trial court had no jurisdiction to consider Apanovitch’s fourth post-conviction petition “there is nothing pending before the trial court with respect to this appeal” and therefore there is no reason to remand this case to the trial court.

He observed that the killing occurred more than 33 years ago and that Apanovitch’s convictions have been affirmed by the Ohio Supreme Court and the federal courts in several post-conviction proceedings and concluded that the proper resolution of this appeal should be to finalize the judgment and bring this matter to a conclusion.

The case is cited 2016-0696. State v. Apanovitch, Slip Opinion No. 2018-Ohio-4744.


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