Opposition Brief — Kevin A. Keith, Petitioner v. Ohio

No. 17-8176

In the Supreme Court of the United States

KEVIN KEITH,

Petitioner,

OHIO,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF OHIO

BRIEF IN OPPOSITION TO THE

PETITION FOR WRIT OF CERTIORARI

MATTHEW E. CRALL*

Prosecuting Attorney

CRAWFORD COUNTY

*Counsel of Record

112 E. Mansfield Street, Ste. 305

Bucyrus, Ohio 44820

419-562-9782

419-562-9533 fax

mattc@crawford-co.org

Counsel for Respondent

State of Ohio

QUESTIONS PRESENTED

There is no consensus among the state and federal courts regarding whether

there is a due diligence requirement in the Brady context, and if so, what is it?

When a defendant uncovers favorable evidence that had been suppressed by

the State, should the court’s materiality analysis include all pieces of

suppressed evidence, despite that the pieces were uncovered at separate times

and raised in separate proceedings?

QUESTIONS PRESENTED

There is no consensus among the state and federal courts regarding whether

there is a due diligence requirement in the Brady context, and if so, what is it?

- When a defendant uncovers favorable evidence that had been suppressed by

the State, should the court’s materiality analysis include all pieces of

suppressed evidence, despite that the pieces were uncovered at separate times

and raised in separate proceedings?

LIST OF PARTIES

The Petitioner is Kevin Keith, an inmate at the Trumbull Correctional

Institution. Mr. Keith was previously a capital prisoner, but is now serving a

sentence of life without the possibility of parole following a grant of executive

clemency.

The Respondent is the State of Ohio.

TABLE OF CONTENTS

QUESTIONS PRESENTED 2... cccsccscccssessrscseccsesecsssssessessessssesssessesessescsseessescnsees i

LIST OF PARTIES .......ccscssscssscsscsssesscsscssessseessecceesssscnsssesoneessesssssseseassaassasesscseaeenes ii

TABLE OF CONTENTS... .cccccscsssssscssssssscssesssssnessscccssscsssssccessesesesacsssssasseassessenseeees iii

TABLE OF AUTHORITIES. ..........cccsccsscssssscsesssssessssecssevssssscsseesesesnesssseasssseseessseeses iv

INTRODUCTION ..........cssccsssccssccsssccsscssesccsssscesessssesssecssesssessesssessseesesssassssseesneseneesenes 1

COUNTERSTATEMEN TT .........cccssscsssssssesssscsessccsssesssesssssssscessssssssessssscesscessssscessneeeseees 4

1. A consensus exists on excusing the due diligence requirement when

the State acts in bad faith which does not apply in this Case. ..............cccceeee 4

2. Potential impeachment evidence which results in no prejudicial effect

does not qualify as Brady material requiring a new trial............cccccccssssssceeeeees 6

3 The Trial Court and the State Appellate Court properly applied the

standard as stated in Kyles vs Whitley ............sccccccsssssssessscccccccsssssrsccecsssssaceeecoees 7

REASONS FOR DENYING THE WRIT .2...........cccsscsccsssssssssssscccsceccesscnsccssoessacceeceoees 8

BUIIt oo... ecsccsssssscssssensscscscnccacecceesececeecceeeeeesscceeecceccsssesesssessssscessesssssssssceeseesscessesses 8

B. The Court reviewing this motion have found no prejudice resulted

from the absence of the Yezzo personnel file ..............cccscssessccessesseessseens 14

il

C. Reviewing Courts have properly denied Keith's Brady because the

Brady evidence he identies, when taken collectively, is not

MAECELIAL.. 00.1... scccccecscetesssssesessssssscsssssnsssccsssseeccceccneeseseceseeeeeseessseesessesssessesesees

ili

TABLE OF AUTHORITIES

Page(s)

CASES

Arizona v. Youngblood,

A488 U.S. 51 (1988)... ccccssssssssseceecceesssseesesecsesssssscausceecesssessneeaeeeeeseetusecerersenssttaaes 5

Basden v. Lee,

290 F.8d 602 (4th Cir. 2002) ..... cc ccccccecssssecsssssesesseseesessesssssssscnsencecsececceeeess 16,18

Boyette v. Lefevre,

246 F.8d 76 (2d Cir. 2001) oo... cccccccsccccccccceeeeesssssccesesseceeseceeeeceessssenanttettacceecaceeees 16

Brady v. Maryland,

373 U.S. 83 (1968) oc ccccsssscssceceseccessnsesesensessreseenes 2,3,5,6,13,14,16,18,19,21,23

Brooks v. Tennessee,

626 F.3d 878 (6th Cir. 2010) ec cccccsssscccessssscssesscccececcesessessseeeessessteeceeeteteees 19

Cone v. Bell,

B56 U.S. 449 (2009) oo. cccccssscsssceeeccecsssssceccecsssesscsssssssscesecessesasseecessrsteceeeeseees 14,24

Cost v. State,

417 Md. 860 (Md. Ct. App. 2010)... ccccccccccccccesecscseeseseeeecceeeeessteteessntans 17, 18

Davila v. City of Bucyrus,

Crawford Co. Case No. 09 CV 0808.........cccccccccccccessssssssessesesseccscceeceseesecsceeeeessesnees 20

Ex parte Napper,

322 S.W.3d 202 (Tex. Ct. Crim. App. 2010) .......cccccccccscccccssssssssssececsssseceeceeseeesensaaes 5

Gillispte v. Tummerman-Cooper,

835 F. Supp. 2d 482 (S.D. Olio 2011) ..... cee eecccecccscsccccesesesssnsssccsvsesssttneceesecenens 16

Illinois v. Fisher,

B40 U.S. 544 (2004) oo ceccscsssesseccccceesssssseececesersceusesssseccvesssnsssasesesenersttesereees 19, 20

Keith v. Houk,

B49 U.S. 1808 (2007) 0... cccccecccsseeesseeeseeecsesersnessessssessesecsecsnsesssssanscsnesseececeesesersrs 13

Keith v. Mitchell,

455 F.8d 662 (6th Cir. 2006)... cesecsccccsccsccceceecseeececcesssseseseccececssessseattenateeeeeceeess 13

Kyles v. Whitley,

514 U.S. 419 (1995) ccc ccccccccseceeeeeecccesessssesesersesseesesseesssesessnsseneaseees 4,7,14,15,16

iv

Newman v. State,

354 S.W.3d 61 (Ark. 2009) ....... cc cccccsccccccessececcecesssesessecsssecsssceusueccsesueesescecaaeeess 16

Rubalcada v. Siate,

7381 N.E.2d 1015 Und. 2000) 2.0... ceecccccssesssececccessececeeeeseecessseuscesseesssuuuseeeeuseeesuea 16

Schledwitz v. United States,

169 F.3d 1008 (6th Cir. 1999)... ee ccccccceeessecccceeeseecceseuesesesssssuneaceesecenaesceeeuaees 16

State v. Jackson,

107 Ohio St. 3d 53, 2005-Ohi0-59819 129... 0.0... cecccceccceeeeescneeeseceeeeueveeveunee see sees 6

State v. Keith,

2008-Ohio-6187 (Ohio Ct. App.)

192 Ohio App.3d Ohio App. 38d 231(2010) «0.0... .cccccccceceesecneeseeveveeneueeess 4,16,23

State v. Keith,

891 N.E.2d 1191 (Ohio Ct. App. 2008), discretionary review denied,

917 N.E.2d 811 (Ohi0 2009)... eee ceeessecccceeeececcceeeusecssscurssseescesssusucesescucasesonsaes 13

State v. Keith,

902 N.H.2d 502 (Ohi10 2009)... cecccceeesssscccccesssccccecersscccesccceesesssssuueasessseauasececenenes 16

State v. Keith,

176 Olio App. 3d, 26... cece cec ccc ee eee nee nee e eee e ene ben ee ens ene EE SEE ESE E EE ;R EERE EE EEE EEE ga 12

State v. Keith,

2017-Ohi0-5488 at QQ. cccesceesesceceeneeestenteseeseeseecesceseusescesevecueeseevs 12,14,15

State. v. Keith,

J/E 94-CR-0042, Feb.13, 2007 P.19 .......ccccecseeseseeeeeeseesees see neeeneeen eee eneceeees 17

State.v. Keith,

3-18-15 (Third Dist. Court of Appeals,2008)...........ccscecescctseseseseceestseeseenereees 18

State v. Keith,

192 Ohio App. 3d 231(2011 34 Dist.Ct. Appeals)...........cccccececscseceneceeeaeeeeseees 16

United States v. Agurs,

AZT U.S. 109-110... cec cece ec cneeeeeeeneeeeeeeeraeeeseteseeeseesetseeneseeneaeeaneasssess 5, 24,25

United States v. Bagley

(1985 473 U.S. 667,682).......cccccccccce erect ce enecnetseteeeeeeeaeeeneeuueeeeerseenseegtens 6,7,24

United States v. Sanchez,

917 F.2d 607 (1st Cir. 1990) ....... Leeeceececaeeaeceecssceeeeecsesesceesssustescessusssauacencteecescesceseneds 19

Turner v. United States,

137 S.Ct. 1885 (Fume 22, 2017)... .cccceccceccccesseeeeccacsceeecevensseeevssnessenesennes 24,25

STATUTES, RULES & CONSTITUTIONAL PROVISIONS

Ohio Crim. R. 38(B)......ccccccccsscccccssseceessseceessssscecsssssseccssssecesensnssecesecuuceeseuassesectuaeeeeaecs 15

OTHER AUTHORITIES

Black’s Law Dictionary 159 (9th Ed. 2009) 00... cccccscecessesecceeecacecseceeeesestsseeseauace 5

vi

INTRODUCTION

On February 13, 1994, Kevin Keith shot six people, killing three of them. He

was convicted by a jury and initially sentenced to death on May 26, 1994. Keith

received executive clemency in 2010 and is now serving a sentence of life without

the possibility of parole. Despite numerous challenges, the state and federal courts

have repeatedly upheld Keith’s conviction. He now seeks review of his fifth request

for a new trial. Although Keith purports to raise substantial constitutional

questions, neither of his claims raise an issue worthy of review. Therefore, the

petition for certiorari should be denied.

In Keith latest filing claiming the State “suppressed evidence,” he alleges

that he should receive a new trial. Specifically he claims a witness, Michelle Yezzo,

an Ohio Bureau of Criminal Investigation (BCI) criminologist, “personnel file

demonstrates that her forensic conclusions were contemporaneously questioned by

her superiors and peers and that she a reputation for untruthfulness.” (Keith Pet. p

3)! The actions taken by her superiors provide evidence that was not true. The

State does not contest that Ms. Yezzo created problems with her co-workers. What

her personnel file shows was there were complaints filed by her co-workers who she

supervised. An unknown person took notes which were placed in Yezzo’s file.

Yezzo’s supervisor included a summary of the complaints to his supervisor, the

1 The Appellate Court stated in a footnote, “At oral argument, Keith’s attorneys insinuated that a trial

deposition was used because Yezzo was on administrative leave from BCI for the issues specific to this

case, such as her work performance. This is not accurate... There is absolutely no indication that Yezzo

was placed on leave for the allegations now being raised regarding substandard work or for falsifying

documents to satisfy law enforcement.”

Superintendent of BCI. The result was that Ms. Yezzo was placed on

administrative leave until she was seen by a counselor. She was then able to return

to work. Despite these unfounded claims, then Attorney General Lee Fisher, who

now claims he would not have allowed her to testify, gave Yezzo a reward for her

service. Further, Yezzo was approved to lecture around the United States by BCI.

Most importantly, after seeking counseling, BCI allowed Yezzo to return to work

and continue her employment until her retirement in 2009.

While Keith alleges her forensic conclusions were challenged and she had a

reputation for untruthfulness, the evidence Keith claims shows this has been

provided to the trial Court and the Appellate Court who clearly did not share that

conclusion. The Appellate Court, as discussed herein, took issue with Keith’s

attorney label of Yezzo as a corrupt analyst.?

Ms. Yezzo’s testimony in the Keith matter was supplied through a deposition

where she corroborated evidence supplied by other witnesses. Her testimony was

not the critical piece of evidence that caused the jury to convict Keith. As stated

herein, much of her testimony was favorable to Keith — the shoe prints found near

the car did not match Keith’s shoes and no fibers found in the getaway car could

2 Michelle Yezzo, prior to the Keith case testified, in State v. Parsons (Huron Co. Common Pleas Case

No. CR 930098). As a result of Yezzo’s analysis in that case, the State was able to obtain a conviction

on a ten year old murder case. Yezzo testified in that case while the allegations were still under

investigation. The prosecutor was aware of this and concealed that fact from the Defendant. A new

trial was granted in that case. The State did not appeal as the Defendant was nearing death at the

time a new trial was granted. Parson died before a trial could be held. The appellate court found

Yezzo’s testimony was critical to reopening a cold case. It concluded that, “Those circumstances are

not remotely present here. Further, one of the findings of Yezzo was clearly favorable to Keith in this

matter, indicating perhaps a strong desire by defense counsel not to challenge Yezzo’s credentials.”

connect it to Keith. These are the findings of the courts who have reviewed these

allegations.

Through this case, Keith attempts to establish a Constitutional requirement

that the State (the prosecutor) must disclose unfounded allegations that have no

bearing on the work product of the witness. Keith can point to no other case that

requires this, but instead says that the United States Constitution and Brady has

always required this. Keith is attempting to create a constitutional issue where

none exists.

Keith first claims that this Court should provide guidance as to how courts

assess “due diligence” requirements for new trial and violations under Brady v.

Maryland, 373 U.S. 83 (1963). Keith has not shown in its application, nor have

lower Court determined that the State violated Brady. Keith’s real objection is that

the Ohio courts misapplied Brady in denying him relief. They did not, but even if

they had, Keith cannot show materiality or prejudice. Thus, regardless of any

alleged error, the outcome for Keith would not change.

Keith’s second claim, calling for the creation of a requirement that Courts

consider all previous failed Brady attempts when reviewing new requests, fares no

better. Keith has continuously placed his failed rationale before Courts for their

consideration through his many, many appeals including those before this Court.

His real argument is that the lower Courts applied his allegation to the law and

decided the cases in favor of the State.

“Initially, we reiterate this court’s prior finding that “a jury of twelve citizens

found the evidence presented sufficient to convict Keith, and this verdict has stood

the test of time and an exhaustive series of both state and federal appeals.” Keith,

2008-Ohio-6187, at 935 restated in State v. Keith, 192 Ohio App.3d 231 (2010).

This is yet another attempt by Keith to invalidate the overwhelming evidence

of guilt against him. As a result of the proven facts of this case, his review of Kyles

lacks merit, and review is unnecessary.

For these and other reasons below, the petition should be denied.

COUNTERSTATEMENT #1

A consensus exists on excusing the due diligence requirement when the

State acts in bad faith.

In 2013 Keith argued that the lower court’s denial of new trial motion should

be denied because he could not show bad faith on behalf of the state. Keith has

repackaged this claim in his arguments to dispense of the “due diligence”

requirements as violation of due process. The State does not seek to protect

prosecutors who hide the ball from Defendants and violate the basic tenants of due

process. The State did not hide the ball with Yezzo’s personnel file. In this case the

issue is that the ball is not what Keith contends it is.

Keith never alleges bad faith by the Prosecutor, only that he should have

known his witness was not liked by her co-workers and had difficulty in the

workplace. The Defendant points to no proven correlation to the quality of her work

in this case or discipline due to problems with her work product.

In Arizona v. Youngblood, this Court answered the question of what a

criminal defendant must prove to establish a constitutional violation based on the

police’s failure to preserve “potentially useful” evidence. 488 U.S. at 51.

Youngblood embodies a constitutional duty “over and above that imposed by cases

such as Brady and Agurs.” Id. at 56. And in identifying the contours of this duty,

courts “face the treacherous task of divining the import of materials whose contents

are unknown and, very often, disputed.” Jd. at 57-58 GQnternal quotation marks).

Given its “unwillingness to read the ‘fundamental fairness’ requirement of

the Due Process Clause as imposing on the police an undifferentiated and absolute

duty to retain and to preserve all material that might be of conceivable evidentiary

significance,” the Court adopted a standard that requires the defendant to prove

“bad faith” on the part of the police. Jd. (internal quotation marks omitted). A

required showing of improper motives by the police, the Court explained, “both

limits the extent of the police’s obligation to preserve evidence to reasonable bounds

and confines it to that class of cases where the interests of justice most clearly

require it.” Id.

3 Despite the claims of the Keith, Bodziak did not review the evidence (the tire casting and plaster

casting of license plate in the snow) reviewed by Yezzo. He only reviewed photographs, documents,

and Yezzo’s reports (per Exhibit 4) submitted by Keith with his motion for a new trial. Keith could

have hired an expert at the state’s expense at the time of trial and failed to do so. No previous court

has found the Bodziak Report persuasive.

“Bad Faith” already has a well-understood meaning in the law. Bad faith

requires “dishonesty of belief or purpose.” Black’s Law Dictionary 159 (9th Ed.

2009). This requirement of improper motive is exactly what the courts look to in

discerning whether the police acted in bad faith. See, e.g,, Ex parte Napper, 322

S.W.3d 202, 232-35 & 238 (Tex. Ct. Crim. App. 2010) (surveying post- Youngblood

case law and observing, “bad faith entails some sort of improper motive, such as

personal animus against the defendant or a desire to prevent the defendant from

obtaining evidence that might be useful’). This Court’s use of a legal term of art to

define a clear standard provides all the guidance that is needed. And Keith

presents no good reason for this Court to elaborate further.

COUNTERSTATEMENT #2

Potential impeachment evidence which results in no prejudicial effect

does not qualify as Brady material requiring a new trial.

Even if the evidence contained in Yezzo’s personnel file was suppressed by

the State, the state’s suppression of evidence favorable to an accused violates due

process rights only where the evidence is material to guilt or punishment. Brady,

373 U.S. at 87. To be considered a violation of due process, however, the suppressed

evidence must both be (1) favorable to the defendant and (2) material to guilt or

innocence. Brady, Id.

The State of Ohio has adopted the materiality standard as enunciated in

United States v. Bagley (1985), 473 U.S. 667, 682. It states that,. “ ‘[E]vidence is

“material” only if there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have been different; a

‘reasonable probability’ is a probability sufficient to undermine confidence in the

outcome.” State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, 4129, quoting

United States v. Bagley (1985), 473 U.S. 667, 682.

Finally, the United States Supreme Court has held that “[t]he mere

possibility that an item of undisclosed information might have helped the defense,

or might have affected the outcome of the trial, does not establish “materiality” in

the constitutional sense.” Agurs, 427 U.S. at 109-110.

The Defendant does not meet his burden of showing prejudice changing the

outcome of the trial.

COUNTERSTATEMENT #3

The Trial Court and the State Appellate Court properly applied the

standard as stated in Kyles us Whitley.

The Defendant continually contends in its many, many filings that courts

have failed to consider the cumulative effect of suppressed evidence in this matter.

In describing United States v. Bagley, 473 U.S. 667, this Court’s interpretation

found that the state’s disclosure turns on a cumulative effect of all suppress

evidence favorable to the defendant not on an item by item basis. Kyles v. Whitley

(1995) 514 U.S. 419.

Despite Keith’s repeated filings of additional suppressed items, every Courts

hearing this case has denied his claims. Each reviewing Court has found that

evidence in question was either: (1) not material; (2) not prejudicial; or (3) that

Keith has not proven a reasonable probability that disclosure of said evidence would

have produced a different result at trial. The theory that Defendant asks the Court

to adopt would result and encourage more unfounded appeals which would further

create a serious lack of confidence in the judicial system. The State does not seek to

establish a system where the prosecutor may hide, a defendant must seek, as stated

by the Defendant in his petition. (Keith Petition p17) The State is attempting to

protect the sanctity and finality of our judicial system.

Despite the Defendant’s erroneous contention that the claimed suppressed

evidence has never been refuted (Keith Petition, p19), every Court has found that

the suppressed evidence did not meet the standard for a new trial. Said another

way after being shut out in every court decision, the Defendant seeks to claim that

all those shut outs should result in a new trial. Zero plus zero plus zero does not

equal one.

REASONS FOR DENYING THE WRIT

A, Reviewing Courts have found overwhelming evidence of Keith's

guilt

Kevin Keith decided to seek revenge after learning that Rudel Chatman had

reported his involvement in a drug ring to the police. On February 13, 1994, he

entered the home of Chatman’s sister—Marichell Chatman—and shot the six

occupants, killing her, her four-year-old daughter, and her aunt, and wounding

three others.

Upon arriving at Marichell’s apartment, Keith was greeted by Richard

Warren. Warren did not know Keith, but Marichell identified him as “Kevin.” After

some small talk with Warren, Keith brandished a nine-millimeter handgun and

ordered everyone in the apartment down on the floor. Tr. 340, 341.4 Again calling

him “Kevin,” Marichell pleaded with Keith not to shoot. Tr. 842. He told her to

“shut up” and to stop using his name and that she “should have thought of this

before [her] brother started ratting on people.” Tr. 342-43. Keith then shot each of

the six and fled. Tr. 343-44. Despite having been shot three times, Warren was

able to stand up and run for help, but Keith noticed him and shot him again. Tr.

344.

An eyewitness heard the gunshots and saw a man she later identified as

Keith leaving the apartment. Tr. 380-81, 385. She watched Keith enter a lightcolored, mid-sized vehicle and slam into a snow bank, before speeding away. Tr.

381-83. The police later discovered tire prints and a partial license plate imprint,

which they matched to a 1982 Oldsmobile Omega, commonly used by Melanie

Davidson, one of Keith’s girlfriends. Tr. 443-44, 474-75. By the time officers located

the vehicle, its relatively new tires had been changed without the owner’s

knowledge. Tr. 446. After Keith had been identified and arrested by witnesses, the

casting of the imprint in the snowbank, tire tracks left in the snow and other

evidence was submitted to the Ohio Bureau of Criminal Investigation. Michelle

Yezzo, the witness at issue, reviewed it. Her deposition would later be read into the

record at trial.

4 The citations below are to the transcripts from Keith’s criminal trial. A complete rendition of the

evidence adduced at trial can also be found in the Ohio Supreme Court’s opinion on direct review.

State v. Keith, 684 N.E.2d 47, 47-53 (Ohio 1997).

In addition to the eyewitnesses who saw Keith leave the apartment, Warren

identified Keith as the shooter. While recovering from surgery, Warren provided

hospital staff with the name of his assailant, “Kevin,” by using sign language with

his father. Nurse John Foor testified that he contacted the police to relay Warren’s

identification. Tr. 778-80. Prior to identifying “Kevin” as the shooter, Warren had

no contact with police. Jd. When interviewed by police, Warren identified Keith

from a name array with 75% certainty and a photo array with 95% certainty. Tr.

362. Warren also made an in-court identification of Keith. Tr. 336.

The police found additional evidence linking Keith to the shootings. Farnella

Graham lived across the street from the local General Electric plant where Keith

had picked up another girlfriend, Zina Scott, from work on the night of the murders.

Tr. 410, 426-37. Graham located a bullet casing in her front yard along with litter.

Tr. 427-28. Not knowing the significance of the bullet casing, Graham tossed it into

her kitchen trashcan. Tr. 428. Thereafter, she told her daughter about her

discovery, and her daughter called the police. Tr. 428-29. An officer responded and

recovered the casing, which matched the bullet casings from the crime scene.

Further testing revealed that all of the casings were fired from the same weapon.

Tr. 438, 572.

The trial court cited the following information as overwhelming evidence

upon Keith’s second request for post conviction relief in 2004:

1. Approximately 8 hours after the shootings, Richard Warren,

while recovering from surgery, wrote the name “Kevin” on a

piece of paper as the name of his assailant.

10

. Later in the day, Warren selected Kevin Keith from a photo

array of six individuals.

. Investigators recovered a total of twenty-four cartridge

casings from the crime scene area, which had all been fired

from the same gun.

. On the night of the murders, [Keith] picked up his

girlfriend, from work at the entrance to the General Electric

plant where another matched casing was found.

. Nancy Smathers, a resident of the Bucyrus Estates, heard

popping noises, looked outside her window on the night of

the murders, and observed a *267 large stocky man making

his escape, whom she was able to identify six weeks later as

Kevin Keith, from a television news story depicting [Keith].

. The man Smathers identified jumped into a light-colored,

medium-sized car, a description consistent with the

automobile Kevin Keith was known to have had access.

. Smathers witnessed a number of events: the car slid into a

snow bank; the perpetrator got out to rock the car, but the

dome light did not operate when the driver's door opened;

the light for the license plate was out; the perpetrator was

able to free the vehicle from the snow bank.

. At the snow bank where Smathers witnessed the getaway

car slide, investigators made a cast of the tire tread and of

the indentation in the snow bank made by the car's front

license plate number—‘048.”

. The indentation from the license plate matched the last

three numbers of a 1982 Oldsmobile Omega seized from

Melanie Davison shortly after she visited [Keith] in jail,

under the pseudonym “Sherry Brown” a few weeks after the

murders.

10.The Oldsmobile was registered to Alton Davison, Melanie's

grandfather, and was also regularly used by Melanie. Alton

Davison had put four new tires on the Omega six months

prior to the murders. He estimated that by February 1994,

the new tires had been driven less than 3,000 miles without

any problems or need for replacement.

11. The cast taken of the tire tread at the crime scene did not

match tires found on the Oldsmobile Omega one month

later, but the cast did match the tread of the tires

purchased by Alton Davison—this, based upon the tire

brochures.

12. The tires found on the Oldsmobile Omega after the murders

had been manufactured but a month before the murders.

11

13.It will be recalled that the perpetrator put a gun to

Marichell's head, complaining bitterly about Marichell's

brother “ratting on people.” Rudel Chatman, the victim's

brother was a police informant in a drug investigation

involving Kevin Keith. And the month prior to the murders,

Keith was charged with several counts of aggravated drug

trafficking.

14.The description of the vehicle by Nancy Smathers—a light

colored, medium-sized car—generally fit the description of

the Oldsmobile Omega owned by Alton Davison and

frequently driven by his granddaughter Melanie, one of the

girlfriends of Kevin Keith.

15. The description of the perpetrator by Nancy Smathers—a

large, stocky black man—generally fits and continues to fit

(from this court's observation of [Keith] at the hearing)

[Keith].

16. It will be recalled that after drinking a glass of water

through a pulled-up portion of a turtleneck sweater, the

perpetrator pulled a nine-millimeter handgun from a plastic

bag that he was carrying. Kevin Keith was seen earlier in

the day in the neighborhood by a neighbor while he (Keith)

was carrying a bag.

State v. Keith, 176 Ohio App.3d 260

While the Court mentioned above the license plate imprint in the snow and the

tire tracks, those facts were readily apparent at the scene on the night of the crime

and were only corroborated through the use of Yezzo’s forensic evaluation. State v.

Keith, 2017-Ohio0-5488 at 22.

At trial, Keith’s defense was that another individual was actually responsible

for the shootings. He also maintained that the evidence linking him to the crime—

such as the bullet casing found by Graham—was planted by the police and that the

police’s fixation on him as a suspect ultimately influenced the eyewitness

identifications. Tr. 841-52.

12

The jury found Keith guilty of three counts of aggravated murder and three

counts of attempted aggravated murder. Keith was then sentenced to death. Keith,

684 N.E.2d at 53.

The state courts affirmed Keith’s conviction and sentence on direct and postconviction review, and the federal courts denied habeas relief. See id. at 54; see also

Keith v. Mitchell, 455 F.3d 662 (6th Cir. 2006), cert denied by Keith v. Houk, 549 U.S.

1308 (2007); State v. Keith, 891 N.E.2d 1191, 1193-94 (Ohio Ct. App. 2008),

discretionary review denied, 917 N.E.2d 811 (Ohio 2009). In 2010, the Governor of

Ohio commuted Keith’s death sentence to life without the possibility of parole.

In 2016, Keith filed his fifth delayed request for a new trial. The basis of this

request was the documents regarding G. Michelle Yezzo’s treatment of her fellow

employees within the Bureau of Criminal Investigation (BCI). The trial court denied

the motion on the grounds that Defendant made no efforts to inquire into the

qualifications of Yezzo during her deposition on cross examination; nor were requests

made for employee file through public records requests. Keith, through his attorneys

or relatives, made several public records requests of police agencies and BCI.

Keith appealed the trial court’s decision to the Ohio Third District Court of

Appeals who affirmed the lower decisions but did so on broader grounds than the trial

court. The trial court summarily dismissed the Brady claim finding that the failure

to provide a personnel file which was not requested did not become a Brady violation

because the witness testified at trial through her deposition. The Appellate Court

discussed at length the testimony elicited from Yezzo and Keith’s attorney cross

13

examination. In addition to the license plate and tire track evidence which

corroborated other testimony, she testified that shoe prints and other evidence found

in the car did not tie Keith to the crime. In its 2017 decision, the State Appellate

Court found:

“Over the years in his numerous appeals and post-conviction

petitions Keith has challenged many aspects of his case and

the evidence against him, but one fact remains clear, the

evidence against Keith was simply overwhelming. Based on

the record we cannot find that, even assuming Yezzo's

personnel file was suppressed, and that it contained

information favorable to Keith, there is no reasonable

possibility that the information contained in Yezzo's file would

have made any difference in the outcome of this case.” State v.

Keith, 2017-Ohio-5488 at § 41 (2017 34 Dist.).

B. The Court reviewing this motion have found no prejudice resulted

from the absence of the Yezzo personnel file

The principles governing claims under Brady v. Maryland are well-known.

Under Brady, the government has an obligation to disclose evidence that is

favorable to the accused and material to either guilt or punishment. Brady v.

Maryland, 373 U.S. 88, 87 (1963). Evidence is material when there is a reasonable

probability—a probability “sufficient to undermine|] confidence in the outcome”—

that the result of the proceeding would have been different had the evidence been

disclosed. Kyles v. Whitley, 514 U.S. 419, 433-34 (1995) Gnternal quotation marks

omitted); see also Cone v. Bell, 556 U.S. 449, 469-70 (2009). In evaluating Brady

evidence, courts must assess “the tendency and force of the undisclosed evidence

item by item” and then determine “its cumulative effect for purposes of materiality.”

Kyles, 514 U.S. at 486 & n.10.

14

Keith’s Brady claim turns on the question of materiality. The courts below

applied these well-settled principles and correctly concluded that Keith failed to

demonstrate the necessary “reasonable probability” of a different outcome. And

even if he could establish that the Ohio courts’ materiality analysis was flawed, he

makes no credible showing (nor could he) that the evidence he identifies in his

petition “could reasonably be taken to put [his] whole case in such a different light

as to undermine confidence in the verdict.” Kyles, 514 U.S. at 485.

The Third District also stated, “We absolutely could not find in the

circumstances of this case that prejudiced resulted here.” State v. Keith, 2017-Ohio-

5488 at P 22 (8'4 District Appeal, 2017). It also concluded that “Based upon the

record we cannot find that, even assuming Yezzo’s personnel file was suppressed,

and that it contained information that was favorable to Keith, there is no reasonable

possibility that the information contained in Yezzo’s file would have made any

difference in the outcome of this case.” Id., Page 24.

In 2007, Keith sought leave to file a delayed motion for a new trial under

Ohio Crim. R. 33(B). Keith said that he had discovered new evidence withheld by

the prosecution, again claiming that he had uncovered evidence that Melton had

committed the crime. The trial court denied the motion, and the Ohio Court of

Appeals affirmed, observing that “[m]uch of the [new] evidence was already

presented at trial.... [A] jury of twelve citizens found the evidence presented

sufficient to convict Keith, and this verdict has stood the test of time and an

exhaustive series of both state and federal appeals. This case was before this Court

15

as recently as February 25, 2008.... We were not persuaded then, nor are we now,

that Keith has suffered prejudice sufficient to merit a reversal of the trial court’s

judgment.” State v. Keith, 2008-Ohio-6187, {33-34 (Ohio Ct. App.). The Ohio

Supreme Court declined discretionary review. State v. Keith, 902 N.E.2d 502 (Ohio

2009).

C, Reviewing Courts have properly denied Keith's Brady claim because

the Brady evidence he identifies, when taken collectively, is not material.

Keith first argues that review is necessary because the “Ohio courts have

decided an important question of constitutional proportions that has not been, but

should be, settled by this Court.” Pet. 7. He says that this Court should clarify that

standard stated in Kyles. Courts must assess the materiality of Brady evidence

collectively, not item-by-item, and that this materiality review must include

evidence identified as part of an earlier proceeding. Pet. 7-18.

But such clarification is wholly unnecessary. As citations in his own petition

confirm, there is a clear consensus among state and federal courts that materiality

review requires a collective assessment of all Brady material, including that

identified in previous proceedings. Pet. 8-13; see also, e.g., Basden v. Lee, 290 F.3d

602, 610 (4th Cir. 2002); Boyette v. Lefevre, 246 F.3d 76, 92 (2d Cir. 2001);

Schledwitz v. United States, 169 F.3d 1003, 1012 (6th Cir. 1999); Gillispie v.

Timmerman-Cooper, 835 F. Supp. 2d 482, 507 (S.D. Ohio 2011); Newman v. State,

354 S.W.38d 61, 69 (Ark. 2009); Rubalcada v. State, 731 N.E.2d 1015, 1019 (Ind.

16

2000). That approach is consistent with the approach advocated by Keith, and ‘he .

therefore fails to offer any basis for review.

According to Keith’s Petition, “None of the 2004, 2007, 2010 suppressed

evidence has ever been refuted (emphasis added by Keith). (Keith Pet. P.19)

That is completely untrue. A brief review (below) of the Trial Court and Appellate

Court decisions makes Keith’s attempt to mislead patently obvious.

2004 Post-Conviction Relief Evidence

In 2004, Keith alleged that State did not provide certain police reports to him

through discovery. Further he alleged the state failed to provide the note written

by Richard Warren in the hospital and that their alternative suspect was under

indictment. Lastly he contended that the police had new information that two

people were involved with the shooting and that the investigator for the police

department had tried to provide assistance to their alternative suspect.

The Trial Court found that, “In fact none of the exhibits, in the judgment of this

court, even meets a lesser burden of proof — that of preponderance of the evidence.”

The Court went as far to conclude that the evidence was “corroborative of guilt.”

(Judgment Entry 94-CR-0042, Feb. 13, 2007, p19)5 The Court held that, “None of

the evidence is likely to alter the jury’s finding of guilt. Id. at 24

In reviewing this evidence, the Ohio Third District Court of Appeal stated:

The essence of Kevin Keith’s successor Petition for Post

Conviction Relief is that the newly discovered evidence

5 The Petition for Post Conviction Relief was filed in 2004, but not denied until 2007 as other actions

were pending in other Court on the case.

17

demonstrated in the proffered exhibits supports a collection of

Brady violations, and that these exhibits, as a whole, support a

theory of innocence. On this issue, this court finds that

reasonable minds can come to only one conclusion—that being

unfavorable to [Keith] and favorable to the State. This court

finds that, on the face of the record the evidence offered by

[Keith] fails to demonstrate substantive grounds for relief. This

court notes that, according to the United States Court of

Appeals for the Sixth Circuit, [Keith] does not contend that he

is actually innocent.

2007 Motion for a New Trial

In 2007, Keith filed for a new trial alleging in summary the following:

1. Bruce Melton told a Confidential Informant on 1/31/94 that he had been paid

$15,000 to cripple “the man” responsible for the raids in Crestline, Ohio

2. Richard Warren never told Amy Gimmets that the assailant’s name was

Kevin because no one by that name worked at the hospital.

3. Nancy Smather’s testimony indicated the getaway vehicle was white, cream,

light in color which matched Melton’s car, not Keith.

4. Melton’s car tires were never analyzed.

The trial Court found that these items were barred by res judicata. State v.

Keith, Case 3-08-15 (Third District Court of Appeals, 2008). The Appeals Court

further found that Ms. Smather’s testified at trial to the color of the vehicle as did

Melton. The Appeals Court determined that discussion at trial made this assertion

inappropriate a motion for new trial because of res judicata due to the issue being

placed before the jury. The Court also determined that issue regarding Nurse

Gimmets could have been raised at trial.

Upon reviewing the asserted evidence as Brady material, the Court found

that Keith had failed to show that the evidence was material. It concluded by

saying:

18

The trial court found, and we agree, that there is no reasonable

probability that the aforementioned evidence, if disclosed,

would have changed the outcome. Much of the evidence was

already presented at trial, if not directly at least inferentially...

We were not persuaded then, nor are we now, that Keith has

suffered prejudice sufficient to merit a reversal of the trial

court’s judgment. Jd.

The “new evidence” Keith uncovered in 2004 and 2007, was, at most, merely

cumulative of the evidence Keith presented at trial, which generally will not suffice

to establish a Brady violation. Brooks v. Tennessee, 626 F.3d 878, 893 (6th Cir.

2010) (“Evidence that is ‘merely cumulative’ to evidence presented at trial is ‘not

material for purposes of Brady analysis.”); see also United States v. Sanchez, 917

F.2d 607, 618-19 (1st Cir. 1990) (collecting cases). Keith has never explained in his

petitions how this new evidence would have altered the jury’s assessment of his

theory that Melton was the actual perpetrator.

2010 Motion for a New Trial

In his 2010 Motion for a New Trial, Keith claimed that a public record

lawsuit against the Bucyrus Police Department revealed that phone call from Nurse

Foor never occurred and therefore Keith’s identification by Richard Warren was

fabricated. He also said the unrelated lawsuit also proved that the witness Farnella

Graham had not found the shell casing near the General Electric Plant but at

McDonalds. McDonalds would have been next door to the restaurant where Warren

ran after being shot. The Plant was over a mile in distance from the shooting and

where Keith was known to have been that night picking up one of his girlfriends.

19

Without support, Keith claims these radio logs are the equivalent of incoming

call logs that maintain a record of every call received by the department. But the

testimony of the Bucyrus Police Department records’ custodian (on which Keith

relied in his new trial motion) shows that the radio logs have a different purpose.

They record radio traffic between the dispatcher and the cruisers and when “the

dispatcher received a 911 call or a call coming in from outside and she needed to

send someone, that would [also] be recorded on the typed log.” New Trial Motion

Ex. 6, Davila v. City of Bucyrus, Crawford Co. Case No. 09 CV 0308, Tr. of hrg. 76—

77. Here, Nurse Foor called the police to relay information about Warren’s status,

including that he was communicating and had stated that the name of his assailant

was “Kevin.” Tr. 776-82. Because Nurse Foor was merely reporting information

and not requesting that an officer be dispatched, the absence of an entry in the

radio log is logical, and its absence does nothing to bolster Keith’s claim that no call

was ever made.

The Trial Court made the following findings regarding this evidence:

1. Notwithstanding repeated collateral attacks upon the

capital convictions of Kevin Keith, the evidence of his guilt

beyond a reasonable doubt is compelling, persuasive and

overwhelming.

2. The defendant has failed to establish, by any standard of

proof, that the so-called newly discovered evidence

regarding Nurse John Foor would produce a strong

probability for a change in the jury verdict of guilty.

3. The issue of whether Nurse John Foor did or did not

telephone BPD [Bucyrus Police Department] on a date and

time certain is only remotely material to the issues in this

case, and unlikely to impact the credibility of the witness

Richard Warren.

20

4. The issue of whether Nurse John Foor did or did not

telephone the BPD on a date and time certain does not

impeach or contradict Richard Warren’s identification of the

Defendant, much less does it contradict the constellation of

evidence, both direct and circumstantial, connecting Kevin

Keith to the events in question.

5. The issue of John Foor’s testimony has been so thoroughly

explored and dissected as to be foreclosed and resolved as

res judicata. This most recent issue appears to have been

known to Keith’s attorneys for more than a year.

6. The Defendant has failed to establish, by any standard of

proof, that the so-called newly discovered evidence

regarding State’s Exhibit 43 [the bullet casing] and the

police log would produce a strong probability for a change in

the jury verdict of guilty.

7. The police log, regarding the discovery of State’s Exhibit 43,

on its face, merely contradicts the testimony of Farnella

Graham; however, the log entry is patently erroneous and

unworthy of belief.

8. The combination of both direct and circumstantial evidence

in this case supports the finding that even were this court

to grant a motion for new trial, the result—a verdict of

euilty—would remain the same.

State v. Keith, 192 Ohio App.3d 231 (2011, 3"4 District Ct. App.)

In dismissing Keith’s appeal, the Third District concluded that Keith had

failed to meet the materiality requirements and denied his Brady claim. It went on

to say that the radio log information was not “even remotely sufficient to undermine

the confidence in the outcome of the trial.” Id. p18.

From the record, it is apparent that the State and the Courts did refute the

evidence put forward by Keith. The issues appealed in this decision were appealed

to the United States Supreme Court and the Ohio Supreme who both refused to

hear the cases.

21

2016 Motion for a New Trial

As discussed above the motion before the Court arises out a personnel issue

among forensic scientists at the Bureau of Investigation (BCI) — the state crime

labs. Several of the analysist complained about treatment by Michelle Yezzo to

their supervisor who documented their complaints to his supervisor — the

Superintendent of BCI.

The State Appellate Court found :

Over the years in his numerous appeals and post-conviction

petitions Keith has challenged many aspects of his case and

the evidence against him, but one fact remains clear, the

evidence against Keith was simply overwhelming. Based on

the record we cannot find that, even assuming Yezzo’s

personnel file was suppressed, and that it contained

information favorable to Keith, there is no reasonable

possibility that the information contained in Yezzo’s file would

have made any difference in the outcome of this case.

State v. Keith, 2017-Ohio-5488

At oral argument, Keith attempted to claim that Yezzo was on leave because

poor performance related to providing answers that law enforcement wanted. The

Court noted in its decision, “There is absolutely no indication that Yezzo was placed

on leave for the allegations now being raised regarding substandard work or for

falsifying documents to satisfy law enforcement.”

The Brady material Keith points to in this petition does nothing to significantly

undercut that evidence of guilt.

Although Keith presses the importance of assessing materiality collectively,

he strains to argue that a defendant should not be punished when the State

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