TABLE OF AUTHORITIES ii
ASSIGNMENT OF ERRORS
1 ISSUES PRESENTED
2 STATEMENT OF THE CASE
3 STATEMENT OF THE FACTS
4 ARGUMENT AND LAW 11
Standard of Review 11
Assignment of Error I:
The Trial Court Erred By Denying Mr. Hartman’s Motion To Dismiss,
With Prejudice, on Grounds of Prosecutorial and Judicial Misconduct,
With Prejudice, on Grounds of Prosecutorial and Judicial Misconduct,Where Mr. Hartman Presented Substantial and Compelling Evidence Of a Pattern of Misconduct, and the State Failed to Rebut that Proof.
Assignment of Error II:
The Trial Court Erred by Denying Mr. Hartman’s Double Jeopardy Motion,
Where the State Failed to Prove Essential Elements of the Charged Crime During the First and Second Trials, Thereby Barring the State from a Third Trial on the Same One-Count Indictment.
The Deliberate Altering of Suppression Hearing and Trial Transcripts Voids Any Alleged “Law of the Case” Obtained as a Result of the Permanently Corrupted Record.
CONCLUSION CERTIFICATE OF SERVICE APPENDIX
Burks v. United States, 437 U.S. 1 (1978)
Downum v. United States, 372 U.S. 734, 736 (1963)
Grava v Parkman Twp.,73 Ohio St.3d 379, 1995-Ohio-331
Green v. United States, 355 U.S. 184 (1957)
Hartman v Medina County Sheriff's Office, et al., NDOH Case No. 1:15-cv-02187 Jelm v. Jelm, 98 N.E.2d 401, 155 Ohio St. 226
McMillan v Pennsylvania, 477 U.S. 79 (1986)
Riehle v. Margolies, 279 U.S. 218, 225 (1929)
State v. Adams, Slip Op. 2015-Ohio-3954
State v Brewer, 2009-Ohio-593
State v. Calhoun, 18 Ohio St.3d 373 (1985)
State v. Daugherty, 41 Ohio App. 3d 91 (1987)
State v Gaines, 46 Ohio St.3d 65 (1989)
State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787
State v. Gustafson, 76 Ohio St.3d 425 (1996)
State v. Hartman, 9th Dist. Nos. 10CA0026-M, 10CA0031-M
State v. Hartman, 9th Dist. No. 12CA0057-M
State v. Hartman, 9th Dist. No. 13CA0018-M
State v. Hous, 2004-Ohio-666
State v. Martello, 97 Ohio St.3d 398, 2002-Ohio-6661 State v. Mullins, 5th Dist. No. 12CA17, 2013-Ohio-1826
State v. Roberts, 119 Ohio St.3d 294, 2008-Ohio-3835 State v. Trimble, 2013-Ohio-5094
Tibbs v. Florida , 457 U.S. 31 (1982)
United States v. Brewer
United States v. DiFrancesco, United States v. Dinitz, United States v. Wilson,
Constitutional Provisions, Statutes
United States Constitution, Fifth Amendment, Double Jeopardy Clause United States Constitution, Eighth Amendment
Ohio Constitution, Article I, Section 10
R.C. §2911.11(A)(2) R.C. §2913.11(A) R.C. §2919.25
Constitutional Provisions, Statutes, Continued Page
Title 28, U.S. Code, §2241(c)(3)
1 Black on Judgments (2 Ed.)
49 Corpus Juris Secundum, Judgments, § 269
Mr. Hartman presented clear and convincing evidence, including, inter alia,
no fewer than nineteen (19) sworn affidavits, proving a pattern of egregious
misconduct and bad faith, by the State and the prior trial court, in multiple
The State failed to offer any countervailing sworn evidence whatsoever in
support of its opposition to the Motion to Dismiss; and
The present trial court ignored Mr. Hartman’s evidence and instead blindly
adopted the State's unsupported and misplaced arguments, issuing findings
that mischaracterized Mr. Hartman's position, arguments, evidence, and proof.
The present trial court erred by relying upon the void and inapplicable “law of the case doctrine” to deny Mr. Hartman's Motion to Enforce Defendant's Fifth Amendment Protections Accorded by the Double Jeopardy Clause, (“Double Jeopardy Motion”) where:
No trial or appellate court, including the present trial court, ever considered
the Double Jeopardy issues on the merits; and
The State failed to prove essential elements of the offense of aggravated
burglary, to wit: (a) entry by force, stealth, and deception, and (b) the
operability of the target gun,
Assignment of Error No. III
Prior decisions of the Court in this litigation, State v. Hartman, 9th Dist. Nos. 10CA0026-M, 10CA0031-M, State v. Hartman, 9th Dist. No. 12CA0057-M, and State v. Hartman, 9th Dist. No. 13CA0018-M, are voidable due to the fact that Medina court reporter Donna Garrity, contracted by Judge Christopher Collier to provide court reporting services to the judge, had filed a deliberately, materially altered “official” transcript of Matthew Hartman’s first trial in the Court of Appeals, thus voiding any purported law of the case, which had been obtained by fraud and collusion, forever tainting the record in this litigation and depriving Mr. Hartman of the protections accorded by the Ohio and United States Constitutions.
Whether the Court of Appeals Should Dismiss the Indictment with
Prejudice, Rather Than Permit the State to Proceed to a Third Trial On The
Same One-Count Indictment, Given the Proof of Egregious Prosecutorial
and Judicial Misconduct During the First Two Trials, Resulting in Reversals
of the Prior Judgments, (Where the Court of Appeals Reviewing Trial I
Warned Against Future Misconduct and The Court of Appeals Reviewing
Trial II Reversed Expressly for the Repeated Misconduct in Trial II,) and
Given the Unrefuted Proof of a Pattern of Similar Misconduct in Other
Whether The Double Jeopardy Clause and Controlling Precedent Prohibits a
Third Trial of Mr. Hartman, Where the State Failed to Prove Essential
Elements of the Charged Crime During the First Two Trials.
Whether the Fraud and Collusion Occurring During Mr. Hartman’s First
Trial and Appeal (i.e., the Deliberate Altering of Suppression Hearing and
Trial Transcripts) Void Any Alleged “Law of the Case” Obtained as a
Result of the Permanently Corrupted Record.
STATEMENT OF THE CASE
Medina County tried Mr. Hartman a second time on the same deficient one-count indictment, violating the Double Jeopardy Clause by retrying him on alleged intended offenses for which the first jury had specifically acquitted him. Despite the warnings about future misconduct, the assistant prosecuting attorneys again engaged in pervasive misconduct during Trial II, in order to obtain another unconstitutional conviction, not supported by the true evidence. Once again, the Ninth District Court of Appeals reversed the conviction and remanded the case, on October 7, 2013, this time expressly on the basis of the prosecutorial misconduct and the plain errors committed by the Trial II judge, Richard Markus. State v. Hartman, 9th Dist. No. 12CA0057-M.
The State wrongly imprisoned him an additional 21 days at the Belmont Correctional Institution, after the reversal and remand of his case. It was during this additional unlawful incarceration that Matthew Hartman contracted the MRSA bacterial infection, a life-long potentially fatal condition, from which he has endured much pain and suffering.
Despite his factual innocence (confirmed by the owner of the house he allegedly burglarized) and despite having served almost twice any legal sentence for the alleged offense, he continues to face the threat of a possible third trial on the same Indictment, and remains on release only subject to conditions of bond. In addition to being incarcerated on unconstitutional convictions and suffering serious health consequences therefrom, his imprisonment kept him, his wife and three children apart, forcing his family to drive many hours every week to visit him. He and his family lost their home they owned for ten years, and he has been prevented from resuming his career in the heating and cooling industry.
1 The present trial court, whose decisions on two of Mr. Hartman’s pretrial motions are the subject of this appeal, is the fourth judge assigned to this case, all previous judges having withdrawn or been recused. Upon recommendation by the Court of Appeals, the original Medina County Assistant Prosecutors have been replaced with assistants from Cuyahoga County. In this appeal, references to “the present trial court” or “Trial III Court” refer to Judge Patricia Cosgrove, who ruled on the two motions at issue. The decisions on Mr. Hartman’s remaining pretrial motions are not included in this appeal because, unlike the motions at bar, the decisions on the other motions are not final appealable orders. Mr. Hartman reserves his right to challenge those rulings, if and when appropriate.
This case is not about a stranger with a gun, breaking into someone’s house, intending to commit a crime therein. The proven facts do not support the charge of aggravated burglary, and not even burglary. Rather, this case concerns two hunting buddies, Roy “Al” Leighton and Appellant Matthew Hartman, and tragic errors by Medina County Sheriff’s Deputies, who exercised very poor judgment and overreacted to events that occurred on May 27, 2009, at the Leighton’s residence, the alleged property burglarized.
During dinner, Hartman and his wife argued. (Tr. 717-718). She testified that she was particularly moody during that time frame because she was suffering from post-partum depression, which was later diagnosed and treated with medication. (Tr. 514-515, 727). After dinner, the family left and proceeded to the home of Hartman’s parents, where Hartman turned over the keys of the family van to Melissa. (Tr. at 728). They had previously parked his other car at his parents’ house, so that he could drive himself home after visiting Al Leighton.
Mrs. Hartman did not receive a phone call from Hartman after she left the Hartman homestead, contrary to the prosecuting attorney’s argument to the jury. (Tr. At 734). They both testified that he would have no way of knowing she went to the Leighton house.
Upon arrival at the Leighton’s, Melissa entered the Leighton home and caused a scene. (Tr. at 514 515, 727). Seeking attention, she created the impression that she and Hartman had just argued, rather than revealing that the argument had occurred at least 30 to 45 minutes earlier.
In the meanwhile, after watering the large garden at his parents’ farm, while his father was out of state on work-related travel and his mother was hospitalized, Hartman gathered up his old .22 caliber target revolver, which he stored at his parents’ home and always took with him when outdoors in this rural area. Shortly thereafter, Hartman mounted his newly purchased ATV, to display to Al Leighton, who also rode ATVs with his son on a track behind Leighton’s property. (Tr. at 413, 717-718, 758, 768, 771-772, 824, 828-829, 833, 882).
Hartman proceeded one mile down Franchester Road on the ATV to the Leighton residence, where he was surprised to see his family van parked in the driveway, since he had believed that his wife was returning to their home in Ashland. Hartman knocked at the opened side door, and called out to Leighton, but received no reply. Leighton testified that he heard Matthew. Then, believing that his family was within the residence, Hartman entered, calling out to his wife, “Babe,” a term of endearment used by both husband and wife in their marital relationship. (Tr. At 425-427, 502-503, 578, 775).
Al placed both Hartman’s unloaded target gun and Al’s loaded 9 millimeter semi-automatic pistol on top of appliances in the entrance hallway. Hartman and Al then stood talking peacefully for almost an hour in the driveway of the Leighton residence, discussing matters of mutual interest, including hunting and Hartman’s new ATV. (Tr. at 383-386, 396, 398, 426- 427). At one point during the conversation, Al suggested that Hartman re-enter the house, unescorted, to get himself a beer from the refrigerator, hardly the conduct of a burglary victim, especially since Hartman had to walk past the firearms to do so. (Tr. at 383-384, 398, 434).
During the conversation, Hartman offered to lend the last of his personal savings, $2,000.00, to Al in order to assist in delaying the imminent foreclosure on the Leighton family home, hardly the conduct of a burglar. (Tr. at 422, 439).
When Hartman had first approached the house, the unstable Kim Leighton ushered Melissa and the children into a back bedroom, where Kim placed a telephone call to the 911 operator and, for the nearly next full hour, related a series of imagined events, that she could neither see nor hear, including claims that she had heard “death rattles” (the television) from the Leighton’s’ living room. (Tr. Suppression Hearing at 16,18-19, 22-31, 36-37, 39-40; Tr. at 481- 482, 485, 489, 493, 499-501, 506, 513, 736, 776). In fact, during her “report” to the 911 dispatcher, Kim readily admitted that she had not seen Hartman at all on that date. (Tr. at 425,
3 There was some inconsistent testimony by Al and Kim Leighton that Al was outside when Hartman arrived on his ATV. (Tr. At 443, 447-478, 452, 454-55, 494-95).
Deputies from the Medina County Sheriff’s Office responded to the 911 call and established a perimeter around the Leighton house for in excess of forty minutes. (Tr. Suppression Hearing at 48, 180, 210).4
As Hartman mounted his ATV, preparing to return to his parents’ home, deputies converged from the bushes of the neighboring shooting range, pointing assault rifles at both men, and placed Hartman under arrest, despite having not conducted an investigation and despite not having determined any basis for the arrest. (Tr. Suppression Hearing at 169, 183, 185-189, 262; Tr. at 407-408, 592).5
In fact, Deputy Frank Telatko, the arresting officer, testified on cross-examination, that he had not determined any particular crime or basis for an arrest, but instead decided to take Hartman into custody and “sort it out later.” Deputy Douglas Clinage testified that the night of the arrest “was a complicated night” because “the charge kept changing.” Their testimony at the suppression hearing clearly revealed that they lacked probable cause to arrest Matthew Hartman.
Although Hartman froze and offered no resistance, the deputies dragged him off of the ATV so violently that they broke his tooth when they forced him to the ground. They cuffed both men, because they could not discern which one was the alleged intruder and which was the “victim,” even though they had observed both men for nearly an hour.
4 During that extended surveillance, sheriff’s deputies watched Hartman and Al talking peacefully in the driveway, not observing even the slightest hint of criminal conduct by Hartman. (Tr. Suppression Hearing at 166, 170-182, 202-203, 208; Tr. at 629, 636, 658, 667-668).
5 Mr. Leighton had returned the .22 caliber target gun to Hartman well prior to the arrest. (Tr. at 384).
Roy Leighton informed sheriff’s deputies that there was no burglary and he did not wish to press criminal charges against Hartman. (Tr. at 422-423).6 He confirmed this information in a letter to the Trial I Judge, after Trial I. The arresting officers also testified that the target gun was not loaded.
At approximately 3:00 a.m. on May 28, 2009, Deputy Douglas Clinage served Hartman in jail with an arrest warrant based upon a constitutionally defective criminal complaint. (Tr. at
6 Deputies conveyed Hartman directly to the Medina County jail where they held him incommunicado for no less than eight hours, refusing no fewer than three requests made by Hartman to contact an attorney. (Tr. Suppression Hearing at 113, 273). They denied him medical treatment for the injuries they caused to him at the time of his arrest when they pulled him from his ATV and threw him on the ground. They also refused him food.
7 Although uncertain whether he had Mirandized him, Clinage interrogated Hartman, who provided Clinage with an oral statement, advising that he had been surprised to see his family van in the Leighton’s’ driveway; that he entered the Leighton’s’ home only after his knocking and announcing himself brought no response from within; and that he brought his .22 caliber target gun along, as was his custom at Al’s, solely to shoot at groundhogs, if they saw any. (Tr. at 552-553). Despite being denied his multiple requests to speak with an attorney, he was innocent and, therefore, said nothing incriminating.
The State again played the 911 recording at Trial II, over defense written and oral objections. (Tr. at 85-86, 530). The playing of the hearsay tape had caused the reversal of the Trial I conviction.
Melissa Hartman again attempted to assert her spousal competency privilege. (Tr. at 79, 82-83, 95, 704-05, 745-48). The trial court erroneously “found” that Hartman had not challenged Melissa Hartman’s competency at the first trial, a finding refuted by the record, which confirmed her written and oral assertions of her privilege, as well as Mr. Hartman’s assertions of his spousal privilege. (Tr. at 87, 96-98, 464-65). The State assured the court that the transcript of Ms. Hartman’s testimony from the first trial would only be used as impeachment, not substantive evidence. (Tr. at 89, 706). The State nonetheless used Melissa’s earlier, questioned trial transcript as substantive evidence. (Tr. at 740-41, 786, 799). The court also erroneously found that Ms. Hartman was an “alleged victim” of the offense of burglary, despite the fact that she never lived at the Leighton residence and never stored anything there. (Tr. at 469).
Standard of Review
The standard of review on all Assignments of Error is de novo. See State v. Trimble, 2014-Ohio-5094; and State v. Mullins, Fifth Dist. No. 12CA17, 2013-Ohio-1826, Para 13.
Assignment of Error No. I
The Trial Court Erred by Denying Mr. Hartman’s Motion to Dismiss, With Prejudice, on Grounds of Prosecutorial and Judicial Misconduct, Where Mr. Hartman Presented Substantial and Compelling Evidence of a Pattern of Misconduct, and the State Failed to Rebut that Proof.
On November 10, 2014, Matthew Hartman filed his Motion to Dismiss, With Prejudice, on the Grounds of Prosecutorial and Judicial Bad Faith and Misconduct (“Motion to Dismiss,”) which he supported with 60 exhibits, including no fewer than 15 Affidavits, constituting clear and convincing evidence of deliberate misconduct, driven by bad faith, on the part of the State and two prior trial judges. On January 6, 2015, Matthew Hartman filed Reply to State's Opposition to Defendant's Motion to Dismiss, (“Reply Brief”), supported by an additional 22 exhibits, including 4 additional Affidavits.
The State filed its Opposition to Defendant's Motion to Dismiss on December 10, 2014. The State failed to produce like-weight evidence, and, in fact, failed to produce any evidence whatsoever in support of its misplaced arguments opposing Matthew Hartman's Motion to Dismiss.
The present trial judge [COSGROVE] scheduled Matthew Hartman's third trial, on the same one- count indictment, for Monday, October 26, 2015. On Friday, October 23, 2016, at 2:00 p.m., without first having conducted an evidentiary hearing, despite having the motion for almost an entire year, the lower court filed its eleventh hour Order on Defendant's Pretrial Motions, denying Mr. Hartman's November 10, 2014 Motion to Dismiss. In denying the Motion to Dismiss, the court turned a blind eye to the clear and convincing evidence Mr. Hartman had presented, and instead simply adopted the State's unsupported position, despite the State’s failure to offer countervailing evidence to rebut Mr. Hartman's evidence. See Reply Brief, at pp. 90-93.
a) The State prosecuted Matthew Hartman when, as the State well knew,
Sheriff's deputies, lacking probable cause, unlawfully arrested Matthew
Hartman based solely on the strength of an uncorroborated miscommunication
from the sheriff's dispatcher to deputies. See Defendant's Reply to State's
Opposition to Disqualify the Trial Testimony of Kimberly Leighton, at pp, 10-
b) The State engaged in Brady violations. See Motion to Dismiss, at pp. 46, 49;
Reply Brief, at pp. 49-53. The Honorable Judge Robert Brown, sitting briefly
by assignment, had scheduled a hearing on the Brady violations, whereupon
the Medina County Prosecutor applied to disqualify him. Judge Markus
conducted Trial II.
c) The State fabricated a discovery document. See Motion to Dismiss, at p.1,
Exhibit One; Reply Brief, at pp. 37- 42, Exhibit Ten.
d) The State invaded the defense camp at Matthew Hartman's first trial. See
Motion to Dismiss, at pp. 1-2, Exhibit Two; Reply Brief, at pp. 42-49, Exhibits
Eleven and Twelve.
e) Trial court I [COLLIER], applying the erroneous “reasonable articulable suspicion”
standard rather than “probable cause” to control the admission of evidence at
trial, denied Mr. Hartman's motion to suppress on the absurd rationale that a
grand jury indictment cures violations of the Fourth Amendment by law
enforcement officers. See Motion to Dismiss, at pp. 2-5, Exhibits Fifty-Five,
Fifty-Six, Fifty-Seven; Reply Brief, at pp. 23-25, Exhibit Seven.
- f) The assistant prosecutor introduced forbidden alleged and untrue “other acts evidence” at Mr. Hartman's first trial, with the approval of Trial Judge I [COLLIER], after assuring defense counsel and the judge during discussions in limine that he would not do so. See Motion to Dismiss, at pp. 5-6, Exhibit Three.
g) Trial Court II [MARKUS] concealed and withheld from the defense a prejudicial ex parte
letter, mailed to the trial court by adversaries of Matthew Hartman's father in
unrelated federal civil litigation and making false and unfounded accusations,
prejudicing the trial judge against Matthew Hartman and his defense team and
influencing the evidentiary rulings.. See Motion to Dismiss, at pp. 6-7,
Exhibit Four; Reply Brief, at p. 66, n. 10.
h) During an ex parte conversation in chambers between the Trial Court I judge [COLIER] and the assistant prosecutor, defense counsel and her investigator overheard
the judge [COLLIER] yell at the assistant prosecutor for compelling testimony from
Matthew Hartman's wife at trial, then adding to the prosecutor, “But I'll help
you.” See Motion to Dismiss, at pp. 9-10, Exhibit Five.
i) Donna Garrity, principal in the firm Medina Court Reporter's Inc. and the
official court reporter under contract with Trial Judge I, [COLLIER] filed deliberately,
materially altered transcripts in the Ninth District Court of Appeals of
Matthew Hartman's first trial and suppression hearing, after requesting and
receiving no fewer than 7 extensions of time from the Court; and
demonstrating that the current trial court [COSGROVE] overlooked obvious alterations,
including incongruous objections inserted into the record to conceal deletions
of testimony, obvious gaps in testimony, and altered passages of testimony
where original testimony was documented in contemporaneous notes, briefs
and later memorialized by impeachment during trial. See Motion to Dismiss,
at pp, 10-26, Exhibits Six, Seven, Eight, Nine, Ten, Eleven, Twelve, Thirteen,
Fourteen, Fifteen, Sixteen, Seventeen, Eighteen, Nineteen, and Twenty; Reply
Brief, at pp. 63-65.
j) Court Reporter Jenifer Lunney, also employed by the suspect Medina Court
Reporters, Inc., prepared and furnished to the defense a materially altered
transcript of Matthew Hartman's October 28, 2013 bond hearing, materially
altered with the intent to deprive Matthew's wife of her inviolable spousal
privilege for yet a third time in the proceedings below. See Motion to
Dismiss, at pp. 26-28, Exhibits Fifty-Eight. Fifty-Nine, and Sixty; Defendant's
Reply to State's Opposition to Protective Order, at pp. 5-7.
k) Donna Garrity, the official court reporter for the judge in Matthew Hartman's
first trial, has been materially altering official transcripts of proceedings
before the same judge [COLLIER] for no less than 13 years, as early as 2003, including,
but not limited to, transcripts in the cases of Jeffery Mack, Frank P. Wood,
David L. Reed, Ashley Marrs, Lynn Vandeusen, Richard Miles, and Gregg
Depew. See Motion to Dismiss, at pp. 28-37, Exhibits Twenty-One, Twenty-
Two, Twenty-Three, Twenty-Four, and Twenty-Five; Reply Brief, at pp. 86-
89, Exhibit Twenty-Two. See also Defendant's Reply to State's Opposition to
Motion for Protective Order, Exhibits Three and Four.
- l) Transcripts prepared by Garrity’s firm, for other Medina County courtrooms, before other judges, have been similarly materially altered. See Motion to Dismiss, at pp. 37-40, Exhibits Twenty-Six, Twenty-Seven, Twenty-Eight, Twenty-Nine, Thirty, and Thirty-One.
m) A purported investigation conducted by the Office of Mike DeWine, Ohio
Attorney General, into the transcript tampering, was no more than a sham,
intended by DeWine to conceal and cover up the misconduct of the Medina
County sitting judge, one of DeWine's Republican cronies. See Reply Brief, at
pp. 70-80; Exhibits Eighteen, Nineteen, and Twenty. (E.g., DeWine’s
“investigators” refused to subpoena Garrity’s raw tapes of hearings, and other
relevant and probative evidence, instead choosing to believe Garrity’s and
Collier’s denials, without scrutiny.
n) The judge in Matthew Hartman's first trial [COLLIER] appears to have participated in a
false billing scheme by court reporter Donna Garrity, who billed Medina
County for stenographic services not supported by case dockets in cases
before Judge Collier. See Motion to Dismiss, at pp. 57-62; Exhibits Forty-Six,
Forty-Seven, Forty-Eight, Forty-Nine, Fifty, Fifty-One, Fifty-Two, Fifty-
Three, and Fifty-Four; Reply Brief, at pp. 80-83.
o) Medina County Prosecutor Dean Holman has personally engaged in altering
“official” transcripts of court proceedings. See Defendant's Reply to State's
Opposition to Motion for Protective Order, at pp. 12-16; Exhibits Four and
p) To the present date, the State persists in misrepresenting the facts and the
record in this case. See Reply Brief, at pp. 1-5, 10-42, 45-49, 53-57, 63-67,
80-83; Defendant's Reply to State's Opposition to Motion for Protective
Order, at pp. 1-5; Defendant's Reply to State's Opposition to Disqualify the
Trial Testimony of Kimberly Leighton, at pp. 1-13; Defendant's Reply to
State's Opposition to Motion to Suppress Unlawfully Seized Evidence, Fruit of
the Poisonous Tree; Defendant's Reply to State's Opposition to Motion to
Suppress the Audio Recording of the 911 Call, at pp.1-13; Defendant's Reply
to State's Opposition to Motion to Enforce Defendant's Double Jeopardy
q) While Matthew Hartman was confined in the Medina County Jail, the State
refused to provide him with timely and necessary medical treatment for a life-
threatening illness contracted while he was unlawfully imprisoned an
additional month following the reversal of his conviction, and, thereby,
subjected him to cruel and unusual punishment, in violation of the Eighth
Amendment, almost causing his death and amputation of his leg. See
Defendant’s Opposition to State’s Motion to Reconsider Order on Venue, at
Pages 6 – 9, and Matthew Hartman’s Reply Brief, in support of Motion to
Dismiss and contra State’s Opposition to Motion to Dismiss, at Page 93.
Without any basis, the Order next attacks the credibility of this large number of individuals who, not knowing each other, have provided Affidavits that testify to the fact that their transcripts, in unrelated cases, have been deliberately, materially altered. The Order attempts to discount their independent testimony by deriding them as “individuals involved in the criminal justice system . . . [who] can hardly be deemed by the court as impartial witnesses.”
7 Mr. Hartman has not claimed conspiracy between Trial Court I and Trial Court II, as the Order erroneously contends. Rather, he has shown that Trial Court I conspired with the Medina County Prosecutor’s Office to violate Mr. Hartman’s rights, by making improper evidentiary rulings, covering up an unlawful arrest and deficient arrest warrant, and then causing Collier’s mistress, Court Reporter Donna Garrity, to materially alter transcripts to deprive Mr. Hartman of a fair hearing on appeal. He also has shown that Trial Court II [MARKUS] wrongfully withheld a prejudicial ex parte letter and then assisted the prosecution by condoning the prosecutorial misconduct during Trial II and allowing plain error to permeate the State’s closing arguments.
The current trial court [COSGROVE]t has disregarded the Affidavit of Talisa Downing who avers that local Medina attorney Robert Campbell conceded to her in conversation that the transcript of the suppression hearing of his client, Richard Miles, had been deliberately altered. See Reply Brief, at pp. 86-89; Exhibit Twenty-Two.
The current trial court [COSGROVE] has disregarded the Affidavit of Ashley Marrs whom Judge Collier openly derided as she was seated in the gallery in support of her fiancé Joel Hysel at his hearing before Collier. Ms. Marrs' mother ordered a transcript of the hearing, incensed over Judge Collier's treatment of her daughter, merely a spectator, in open court. Seven months after Mrs. Marrs had ordered the transcript, Donna Garrity delivered a materially altered transcript of the hearing from which Garrity had illegally deleted all of Judge Collier's offensive remarks to Ashley Marrs, in open court. See Motion to Dismiss, at pp. 34-35; Exhibit Twenty-Four.
In her Order, the judge [COSGROVE] concluded “the Defendant has made accusations of a conspiracy or collusion between the judges in two separate trials, the Medina County Prosecutor's Office, and the court reporter to alter the transcripts, this theory is based upon supposition and innuendo.” The judge's [COSGROVE'S] “conclusion” is a mischaracterization of the facts and proofs Mr. Hartman advanced in his Motion to Dismiss. Mr. Hartman never accused Judge Markus of collusion to alter transcripts. Rather, Judge Markus’ misconduct was his withholding of a prejudicial ex parte letter and his permitting plain error at trial which assisted the prosecution. There certainly was collusion, however, between Judge Collier and Donna Garrity, as motivated by their illicit personal relationship and Garrity’s apparent false billing scheme, facilitated by Judge Collier, and collusion by County Prosecutor Dean Holman, his assistants, and Judge Collier.
Moreover, the facts and the evidence Matthew Hartman advanced in his Motion to Dismiss are not the product of “supposition and innuendo,” but rather constitute sworn proof of a continuing pattern of prosecutorial and judicial misconduct driven by bad faith. The State was unable to provide even one sworn affidavit to refute Mr. Hartman’s proof.
The current trial court has refused to face and acknowledge the inconvenient truth, supported by overwhelming evidence, that the Medina County “Justice” System is beleaguered by a longstanding and complete lack of integrity, demonstrated by the recurrent pattern of misconduct by a sitting judge, the Medina County Prosecutor's Office, and employees of Medina Court Reporters, Inc., as well as the documented misconduct of a visiting judge, whose misconduct led to plain error in closing argument at Matthew Hartman's second trial, thereby invalidating the resulting unreliable jury verdict.8
The Honorable Jeffery J. Helmick, United States Judge for the Northern District of Ohio, takes a distinctly different view of the same facts and evidence that Matthew Hartman presented to the current trial judge, and which he now presents to the Court. In “reluctantly” dismissing Matthew Hartman's federal habeas corpus petition, without prejudice, on the basis of the federal abstention policy, Judge Helmick expressly stated in his Order, “I am deeply troubled by the numerous and serious allegations Hartman raises.” Matthew James Hartman v Medina County Sheriff's Office, et al., NDOH Case No. 1:15-cv-02187, Dkt. 5.9
[T]he Double Jeopardy Clause bars retrials “where bad faith conduct by judge or prosecutor” threatens the “[h]arassment of an accused by successive prosecutions.” United States v. Dinitz, 424 U.S. 600, 601 (1976) citing Downum v. United States, 372 U.S. 734, 736 (1963). “Repeated prosecutorial sallies would unfairly burden the defendant and create a risk of conviction through sheer governmental perseverance.” Tibbs v. Florida (1982), 457 U.S. 31, 41, 102 S.Ct. 2211, 72 L.Ed.2d 652.
8 The Ninth District Court of Appeals stated it thusly, “[T]he trial court, while expressing concern that the prosecutor was possibly making references to matters that were not in evidence, overruled the [defense counsel’s] objection and the assistant prosecutor’s inappropriate comments continued.” State v. Hartman, 2013-Ohio-4407, at ¶ 19. “To the extent that this Court should view any remaining comments [of the assistant prosecutors] under the plain error standard, we conclude that the totality of the improper comments constitutes plain error.” Id., at n. 1.
9 Matthew Hartman filed a habeas corpus petition pursuant to Title 28 U.S.C. §2241(c)(3) and Title 28 U.S.C. §1651 in United States District Court for the Northern District of Ohio. U.S. District Judge Jeffery J. Helmick “reluctantly” dismissed the petition under the federal abstention policy, ruling that the petition was not ripe for review until Mr. Hartman has exhausted his state appeals of the trial court's denial of his Motion to Dismiss and Double Jeopardy Motion, both final appealable orders, according to U.S. District Judge Helmick.
In Daugherty, a case precisely on point, the court of appeals barred a subsequent prosecution of the Appellant under the Double Jeopardy Clause, holding:
Finally, we have considered the entire record of this case in the light of the precedent of United States v. Dinitz (1976), 424 U.S. 600, and conclude that this accused has been sufficiently harassed by unlawful government procedure as to invoke the prohibition against unwarranted successive criminal prosecutions within the meaning of the Double Jeopardy Clauses of the federal and state Constitutions. [Emphasis added.] Daugherty, 41 Ohio App. 3d 93-94.
Assignment of Error No. II
The Trial Court Erred by Denying Mr. Hartman’s Double Jeopardy Motion, Where the State Failed to Prove Essential Elements of the Charged Crime During the First and Second Trials, Thereby Barring the State From a Third Trial on the Same One-Count Indictment.
On June 2, 2015, Matthew Hartman filed Motion to Enforce Defendant's Fifth Amendment Protections Accorded by the Double Jeopardy Clause, (Double Jeopardy Motion) a motion to dismiss the one-count indictment charging him with aggravated burglary, on double jeopardy grounds. On July 21, 2015, Mr. Hartman filed his Reply to the State's Opposition.
In his Double Jeopardy Motion, Matthew Hartman proved that, at his first trial, the State failed to prove the operability of the unloaded target gun that sheriff's deputies seized from him incident to his unlawful arrest, an essential element of the offense of aggravated burglary. See Double Jeopardy Motion, at pp. 4-6.
The Indictment charged Mr. Hartman of having a “handgun” in his possession at the time of the alleged incident. Thus, as defined and as applicable in ORC §2911.11(A)(2), a handgun
Further, a “deadly weapon,” as defined in ORC §2913.11(A) and made applicable to §2911.11(A)(2), must necessarily be “capable of inflicting death,” and therefore, of necessity, must be proved to be operable or “can readily be made operable.” State v. Gaines, 46 Ohio St.3d 65, 68 (1989) citing to United States v Brewer, 841 F.2d 667, 668 (6th Cir.1988) and to McMillan v Pennsylvania, 477 U.S. 79 (1986), (holding that the State must prove beyond a reasonable doubt the firearm to be operable when relying upon O.R.C. 2923.11(B)); State v Johnson, 2008-Ohio-4451 (reversing conviction for felonious assault where defendant used a handgun to bludgeon victim, the handgun was never recovered, not tested for operability, and therefore operability not proven).
The testimony was unanimous that on May 27, 2009, Hartman never removed the .22 caliber target gun from its holster, which he carried in a gun belt draped over his shoulder; never brandished it; and never threatened anyone, either with the handgun, or in any other way. (Tr. Suppression Hearing at 106-107, 166-167, 196, 264-265, 283; Tr. at 382,402, 494, 496, 505). Even Kim, the 911 caller, admitted that Hartman did not make any threats and never pulled the target gun out of the holster. (Tr. at 494, 502, 505, 510-12). Al testified that he witnessed no argument between Hartman and Mrs. Hartman, and they were never in the same room that day at the Leighton home. (Tr. at 425).
The testimony of multiple defense witnesses confirmed that Mr. Hartman customarily brought his .22 caliber target gun every time he visited Al, just like Al customarily carried his 9 millimeter handgun whenever he visited Mr. Hartman at Hartman’s parent’s farm, located a mile from Al’s property. Steven Hartman testified that Matthew always carried his .22 caliber western-style target gun with him when he went outdoors afield, including to Mr. Leighton’s residence. (Tr. at 143-144, 545, 554). It must also be noted that the Leighton’s residence is located next door to a target shooting range, where individuals always carry and use firearms.
Direct Examination of Steven Hartman:
Q. Hm-hm. And what about - - is there a specific handgun he likes to use
more than others for target shooting? A. Yes. . ..
[Unexplained gap in testimony]
cock it, pull the trigger. It’s not a rapid fire.
(Tr. At 506-507).
Moreover, the State failed to prove, at both of Matthew Hartman's prior trials, the essential element that he entered the Leighton residence by force, stealth, or deception on the date of the purported incident.
The State's evidence at Tr. 553, consisting of Mr. Hartman’s unsworn, uncounseled, oral statement, was that the door at the Leighton’s was partially opened, as was not atypical there, and that Matthew knocked before entering, as he had done many times before over the years. (Trial II, Tr. at 553). The State never countered that evidence. Once alerted to this deficiency in its proof, the State, during the second trial, induced Kim Leighton to testify that she closed thedoor (Trial II, Tr. at 491), and “believed” it was closed (Trial II, Tr. At 522). Ms. Leighton, however, also testified that she called Al Leighton in from the barn after Mr. Hartman arrived in their yard. (Trial II, Tr. at 455, 510). Ms. Leighton admitted that she did not know through which door Al Leighton entered, nor whether Al closed the door behind him. (Trial II, Tr. At 510-12). Al Leighton was not certain through which door Mr. Hartman had entered. (Trial II, Tr. at 381, 410).
Thus, the State never proved that the door was closed. It is the State that bears the burden of proof – and it must present proof beyond a reasonable doubt. The State failed to prove that Mr. Hartman entered the Leighton house by force, stealth, or deception.
The record is devoid of any evidence that Matthew Hartman entered the Leighton residence by fraud, stealth, or deception. This failing by the State is amply demonstrated by the State's closing argument at Matthew Hartman's second trial, during which the Assistant Prosecutor attempted to cover up its deficient proof by arguing numerous alleged facts, none of which were in evidence by anyone’s testimony, and most of which were directly contradicted by the actual evidence.
Stealth is defined by the judge in his instructions, and it's any sly, secret, or clandestine act to gain entrance. Well, this is a sly entrance, ladies and gentlemen. I think you can find that. Now, granted, [Matthew Hartman] came up in a blaze of glory up the gravel driveway. If any of you have the gravel driveways, by the way, I don't know if you do, that's not a friendly way to stop over at the house, to come over in your four-wheeler and tear up someone's driveway. That's just not the way it happens, ladies and gentlemen. You're coming over for a friendly visit, by the way. We'll talk a little bit more about that. That's not a friendly way to stop by. He tears up the driveway. Right? But what is sly and secret about this is as that family retreats, retreats to that back bedroom, the kids, Missy Hartman, to be protected, they get back there, and during that time, without them hearing, he enters that home and walks all the way across the length of that home and outside of that bedroom, by the way. Didn't just come in and knock on the door to the kitchen or the living room, he walks all the way to that bedroom where they are secreting themselves, and he's already upon Al Leighton, and Al Leighton draws that gun down, and I won't pull the gun out and point it towards
you because I don't think any of you wants that, and he points it right at his head. So that's a sly and secreted entry, that's stealth into that home. [Emphasis added.]
(Tr. Trial II, at 1100-1102).
driveway,” while on the other hand, the State inconsistently argued that Matthew effected a “sly and secreted entry” in the Leighton home. That was the best the State could do to argue stealth where evidence of stealth was completely lacking. Argument is not evidence or proof, however.
An examination of the record defeats the State's argument, which was a deliberate misstatement of the evidence adduced at trial. In fact, contrary to the prosecutor’s argument that Matthew Hartman entered silently without knocking, the State's own witnesses confirmed that, before entering, Matthew knocked on the door and called out to his wife, “Babe,” a term of endearment used by both husband and wife in their marital relationship. All witnesses acknowledged hearing him knock and call out. (Tr. at 425-427, 502-503, 578, 775).
The record is clear that Mr. Hartman has already been deprived of his constitutionally guaranteed double jeopardy protections by being twice subjected to trial on the same false charge. The State now hopes to expose Matthew Hartman to triple
10 Matthew Hartman, under the analysis of the Ohio Supreme Court in State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787 and State v. Adams, Slip Op. 2015-Ohio-3954, was exposed to double jeopardy where the jury, at the express instruction of the trial court, found that the State had failed to prove beyond a reasonable doubt that Matthew Hartman intended to commit the alternative means of Aggravated Menacing, R.C. 2903.21, Menacing, R.C. 2903.22, Domestic Violence, R.C. 2919.25, and Assault, R.C. 2909.13. (Tr. Trial I, Jury Instructions, at 1072- 1073). “[W]e adopted the rule that each possibility in an alternative means case must be supported by sufficient evidence in State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995, at ¶ 49.” Adams, at ¶ 290. The State again tried Mr. Hartman in his second trial on the very same alternative means, of which the jury had acquitted him at his first trial, waiting until the close of evidence to finally give him actual notice of the alternative means he had to defend against, thus depriving him of his double jeopardy protections. (Tr. Trial II, at 1075). State v. Hous, 2004-Ohio-666, ¶11, (“Jury instructions given at the end of trial cannot relate back to give an accused adequate notice of charges against which an accused must defend, which necessarily must be set out at the commencement of a prosecution by way of an indictment per Article I, Section 10, Ohio Constitution”). The State intends to again try Matthew Hartman of the same alternative means upon which he had been tried in his first two trials, and acquitted by jury at his first trial, unlawfully exposing him to triple jeopardy. See State's 10/01/2014 Superseding Bill of Particulars, which the State improperly uses belatedly to bolster its deficient indictment.
"[T]he prohibition against multiple trials is the controlling constitutional principle." United States v. DiFrancesco (1980), 449 U.S. 117, 132, quoting United States v. Wilson (1975), 420 U.S. 332, 346.
"The prohibition is not [only] against being twice punished, but against being twice put in jeopardy * * * * The 'twice put in jeopardy' language of the Constitution thus relates to a potential, i.e., the risk that an accused for a second time will be convicted of the 'same offense' for which he was initially tried." Abney v. United States, 431 U.S. 651, 661 (1977).
The Ohio Supreme Court, in State v. Brewer, held:
The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution protect criminal defendants against multiple prosecutions for the same offense. This court has recognized that "[t]he protections afforded by the two Double Jeopardy Clauses are coextensive." State v. Martello, 97 Ohio St.3d 398, 2002-Ohio-6661, 780 N.E.2d 250, ¶ 7, citing State v. Gustafson (1996), 76 Ohio St.3d 425, 432, 668 N.E.2d 435.
The principle behind the Double Jeopardy Clause "‘is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for the alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.'" State v. Roberts, 119 Ohio St.3d 294, 2008-Ohio-3835, 893 N.E.2d 818, ¶ 11, quoting Green v. United States (1957), 355 U.S. 184, 187-188, 78 S.Ct. 221, 2 L.Ed.2d 199. "Repeated prosecutorial sallies would unfairly burden the defendant and create a risk of conviction through sheer governmental perseverance." Tibbs v. Florida, 457 U.S. 31, 41 (1982), 102 S.Ct. 2211, 72 L.Ed.2d 652. Therefore, "[t]he Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.'" State v. Calhoun (1985), 18 Ohio St.3d 373, 376, 18 OBR 429, 481 N.E.2d 624, quoting Burks v. United States, 437 U.S. 1, 11 (1978), 98 S.Ct. 2141, 57 L.Ed.2d 1. [Emphasis added.]State v Brewer, 2009-Ohio-593, at ¶ 14-15.
Assignment of Error No. III
The Deliberate Altering of Suppression Hearing and Trial Transcripts Voids Any Alleged “Law of the Case” Obtained as a Result of the Permanently Corrupted Record.
Mr. Hartman has presented clear and convincing evidence that Donna Garrity, Judge Collier's official court reporter and owner-operator of Medina Court Reporters, Inc., has filed a deliberately, materially altered “official” transcript of Mr. Hartman's first trial in the Ninth District Court of Appeals, after obtaining no fewer than seven extensions of time to file a transcript. The corrupted “official” transcript presents materially altered testimony of witnesses at the suppression hearing and at trial. The evidence also reveals Garrity’s motivation: she is the mistress of Judge Collier, a married man. She also has billed the County for transcribing hearings in Judge Collier’s courtroom, which alleged hearings are not reflected in the court’s dockets.
The record in this case is forever tainted by the unethical and unlawful conduct of court reporter Donna Garrity who, conspiring with others, filed a deliberately, materially altered transcript in the Court of Appeals with the intent to deprive Matthew Hartman of a fair hearing on appeal.11
The present trial court, beside denying clear and convincing evidence of deliberate, material alterations to transcripts, relies heavily on the alleged “law of the case doctrine” to deny Matthew Hartman's Motion to Dismiss and Double Jeopardy Motion.
There is no “law of the case” which controls this appeal or the underlying case! Any purported “law of the case” is made void by the filing in the Ninth District Court of Appeals of the materially altered “official” transcript of Matthew Hartman's first trial and the suppression hearing, a fraud upon the Court and upon Mr. Hartman, forever tainting the proceedings below. The filing of the deliberately corrupted transcript by Garrity is simply a bell that has been rung. There is no remedy at law or in equity to unring that bell, except dismissal with prejudice of the pending one-count indictment falsely charging Matthew Hartman with aggravated burglary.
It is well established that Res Judicata is made void when it is obtained by fraud or collusion.
“A judgment of a court having jurisdiction of the parties and of the subject matter operates as res judicata, in the absence of fraud or collusion.” [Emphasis added.] Riehle v. Margolies, 279 U.S. 218, 225 (1929).
11. Donna Garrity, who is not a trained attorney, lacks the knowledge and acumen to identify passages of testimony to add, delete, and alter. Obviously, she received instruction from those knowledgeable of the issues and those whom the alterations protect.
“The procurement of a judgment by fraud is a fraud upon the court as well as upon the opposing litigant . . . . [Emphasis added.]
"The fact that a judgment was obtained through fraud or collusion is universally held to constitute a sufficient reason for opening or vacating such judgment either during or after the term at which it was rendered. In some jurisdictions statutes confer power on the courts to vacate judgments on the ground of fraud and to regulate its exercise, although generally courts of record possess an inherent common-law power in this behalf, which is not dependent on legislation." 49 Corpus Juris Secundum, Judgments, § 269, page 486. [Emphasis added.]
"The power to set aside judgments for fraud or collusion, though expressly granted by statute in many of the states, is not dependent upon legislative recognition. It is a common-law power, inherent in all courts of record, and may be exercised after the expiration of the term at which the judgment was rendered, on the application of the party injured." 1 Black on Judgments (2 Ed.), 489, Section 321.” [Emphasis added.] Jelm v. Jelm, 98 N.E.2d 401, 408-409, 155 Ohio St. 226.
Prior judgments in this case, including prior decisions of the Court of Appeals in Matthew Hartman's prior appeals, State v. Hartman, 9th Dist. Nos. 10CA0026-M, 10CA0031-M, State v. Hartman, 9th Dist. No. 12CA0057-M, and State v. Hartman, 9th Dist. No. 13CA0018-M, are voidable due to the fact that Medina court reporter Donna Garrity, contracted by Judge Christopher Collier to provide court reporting services to the judge, filed a deliberately, materially altered “official” transcript of Matthew Hartman’s first trial in the Court of Appeals. Thus, this unlawful tampering with records voids any purported law of the case, because any alleged law of the case was obtained by fraud and collusion, permanently and irrevocably tainting the record in this litigation and depriving Mr. Hartman of the protections accorded by the Ohio and United States Constitutions.
Dismissing the Indictment, with prejudice,
Bar the State of Ohio from charging and trying Appellant for yet a third time for
any and all alleged offenses arising from the same incident alleged in the State’s
one-count Indictment currently pending in the Medina County Court of Common
Pleas for the past 7 years;
Order the complete and unfettered release of the Appellant, with full return of his
Order that Appellant’s record(s) be expunged to remove any and all references to
his false arrest and subsequent imprisonment; and
Provide such other and further relief as the Court deems necessary and proper.
MARILYN A. CRAMER,(Attorney Reg. No. 0032947)THE CRAMER LAW GROUP, LLC
11470 Euclid Avenue, Suite 202Cleveland, OH 44106
Counsel to Defendant-AppellantMatthew J. Hartman