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Ashtabula County trial court did not err by not allowing ‘one strike’ deposition in baby murder case
TRACEY BLAIR
Legal News Reporter
Published: March 1, 2017
The 11th District Court of Appeals has once again rejected a convicted murderer’s motion to allow the deposition of Dr. Joseph Felo, supervising forensic pathologist at the Cuyahoga County Medical Examiner’s Office.
Brandon J. Rice appealed from a 2015 Ashtabula County trial court’s judgment that overruled his renewed motion for an order allowing deposition and motion for status conference.
Rice was convicted in 2009 of murdering his 4-month-old son, Braydon Rice.
Rice claimed Braydon died after he tripped over a walker toy and fell on top of the baby, according to case summary.
Rice was sentenced to 15 years to life in prison for the Oct. 24, 2007 death.
In 2012, Rice filed a motion for a new trial, a motion for a status conference and a motion to allow Felo to be deposed.
The appellant stated there was newly-discovered evidence that Felo’s opinion was that Braydon’s injuries were not caused by “one strike” and that the skull fractures “were more likely the result of a crushing type impact than a strike.”
Rice argued he did not discover the evidence at trial or within 120 days of the verdict as required in Crim.R. 33.
The trial court found Rice failed to submit convincing evidence that he was unavoidably prevented from discovering Felo’s participation in the autopsy or his potential opinion on the matter. In addition, the trial court ruled even if the doctor’s opinion fully supported the defense theory, his testimony was not likely to change the result of a new trial.
The 11th District agreed with the trial court’s first judgment and is now standing by the conclusion reached in its previous decision:
“The record reflects that appellant was provided with Dr. Felo’s name and contact information at the Cuyahoga County Coroner’s Office … five months before trial. Additionally, Dr. Frank P. Miller, the Cuyahoga County coroner, testified at trial that Dr. Felo was in the autopsy room from `beginning to end’ and was the autopsy’s supervising physician. Appellant was afforded ample opportunity to inquire into Dr. Felo’s opinion regarding Braydon’s injuries and cause of death.”
Appellate Judge Diane V. Grendell concurred with 11th District Judge Timothy P. Cannon’s 2017 opinion that the trial court’s denial of Rice’s renewed motion to depose Felo was not error.
Appellate Judge Colleen Mary O’Toole dissented for the same reasons outlined in the court’s 2012 case involving Rice.
“Appellant claims that he never meant to harm his baby boy and that he merely tripped and fell onto his son,” Judge O’Toole wrote in her dissenting opinion. “Thus, appellant is pleading actual innocence which should never be ignored. Actual innocence claims may be properly raised in a motion for new trial.”
Judge O’Toole cited State v. Byrd, 145 Ohio App.3d 318, 330-331 (1st District.2001).
“The record before this court reveals that appellant raises a legitimate assertion which should not be `brushed off,’ given how serious and destructive the charges are in this case,” she added. “… There is a strong possibility that Dr. Felo’s testimony would change the result if a new trial were granted.”
The case is cited State v. Rice, 2017-Ohio-501.