Date: 04-29-2017

Case Style:

STATE OF OHIO v. WILLIAM K. SAPP

Case Number: 2015-CA-43

Judge: Jeffrey Froelich

Court: IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT

Plaintiff's Attorney:

MEGAN M. FARLEY, Assistant Prosecuting Attorney

Defendant's Attorney:

MARSHALL G. LACHMAN

Description: In 1999, Sapp was found guilty of nine counts of aggravated murder with
death penalty specifications, two counts of attempted aggravated murder, four counts
each of rape by force and kidnapping, three counts of tampering with evidence, and three
counts of abuse of a corpse. At the penalty phase of his trial, the jury found that the
aggravating factors outweighed the mitigating circumstances, and it recommended the
death penalty. After the merger of some counts, the trial court sentenced Sapp to death
for three aggravated murders, to life imprisonment for two of the rapes, to 10- to 25-years
on each of the other two rapes and the attempted aggravated murder, and to several
additional prison terms, all to be served consecutively. On appeal, we affirmed his
conviction and sentence in all respects. State v. Sapp, 2d Dist. Clark No. 99 CA 84,
2002-Ohio-6863. The Supreme Court of Ohio also affirmed his conviction and sentence.
State v. Sapp, 105 Ohio St.3d 104, 2004-Ohio-7008, 822 N.E.2d 1239.
{¶ 3} On June 4, 2001, Sapp filed a petition for postconviction relief. The trial
court denied this petition on January 10, 2002, and Sapp appealed. This court dismissed
the appeal for lack of a final appealable order, because the trial court’s decision did not
include findings of fact and conclusions of law. State v. Sapp, 2d Dist. Clark No. 2002
CA 8, 2002-Ohio-3922.
{¶ 4} According to the trial court’s next entry, which was filed on March 25, 2015,
“a decision was drafted by [that] court providing detailed findings of fact and conclusions
of law, however, it was recently discovered that the decision was never docketed and
cannot not be located.” Thus, on that date, the trial court provided findings of fact and
conclusions of law, and it again denied the petition for postconviction relief.
{¶ 5} Sapp appeals, raising three assignments of error.
I. Standard of Review


-3-
{¶ 6} An appellate court reviews a trial court’s denial of a petition for post
conviction relief under an abuse-of-discretion standard. State v. Gondor, 112 Ohio St.3d
377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58. An abuse of discretion implies an arbitrary,
unreasonable, unconscionable attitude on the part of the trial court. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
II. Application of Res Judicata
{¶ 7} In his first assignment of error, Sapp claims that the trial court improperly
applied the doctrine of res judicata in denying his petition, because he relied, in part, on
evidence outside the record.
{¶ 8} We addressed the application of res judicata in postconviction
proceedings in State v. Goldwire, 2d Dist. Montgomery No. 20838, 2005-Ohio-5784. We
stated:
The most significant restriction on Ohio’s statutory procedure for post
conviction relief is that the doctrine of res judicata requires that the claim
presented in support of the petition represent error supported by evidence
outside the record generated by the direct criminal proceedings. * * *
Under the doctrine of res judicata, a final judgment of conviction bars the
convicted defendant from raising and litigating in any proceeding, except an
appeal from that judgment, any defense or any claimed lack of due process
that was raised or could have been raised by the defendant at the trial which
resulted in that judgment of conviction or on an appeal from that judgment.
Our statutes do not contemplate relitigation of those claims in post
conviction proceedings where there are no allegations to show that they


-4-
could not have been fully adjudicated by the judgment of conviction and an
appeal therefrom. To overcome the res judicata bar, the petitioner must
produce new evidence that renders the judgment void or voidable, and
show that he could not have appealed the claim based upon information
contained in the original record. Res judicata also implicitly bars a
petitioner from “repackaging” evidence or issues which either were, or could
have been, raised in the context of the petitioner’s trial or direct appeal.
(Internal citations and quotations omitted.) Id. at ¶ 11; State v. Eicholtz, 2d Dist. Clark
No. 2013 CA 100, 2014-Ohio-3837, ¶ 29.
{¶ 9} Sapp attached two affidavits to his petition, which he contends contain the
evidence “outside the record” on which he sought to rely. The affidavits relate to an
incident that occurred during the State’s rebuttal closing argument during the guilt phase
of the trial. Sapp was wearing a “stun belt” during the proceedings, and it unexpectedly
shocked him. Sapp exclaimed in front of the jury, “What the f*** you doing, man?,”1
apparently thinking that a deputy had shocked him deliberately when his behavior had
not warranted it. The court immediately went into recess and instructed everyone in the
courtroom to remain silent until the jury was escorted out. Spectators were also
instructed to leave.
{¶ 10} An off-the-record discussion was had, and Sapp was escorted “downstairs”
to have the mechanism checked. When Sapp returned to the courtroom, his attorney
was allowed to make a statement. The attorney indicated that the “electrical belt” had
1Because our opinions are widely available online, we have chosen to insert asterisks into certain offensive words that appear in the transcript of this case and in other cases.


-5-
been removed and that Sapp “still wants to be in the courtroom with his shackles on.”
The parties then discussed what the jury should be told about the incident. The agreed
upon instructions included that the shock “was not done intentionally” and was “not
occasioned by fault of any individual.” The State then resumed its closing argument.
{¶ 11} The next day, after the jury had reached its verdicts but before the verdicts
were announced, defense counsel asked for a mistrial based on Sapp’s “yelling at the
deputy” during argument the previous day. In response, the prosecutor noted that a
curative instruction had been given, that there had been numerous security concerns
throughout the trial which had justified the security measures that had been taken, and
that “the Defendant himself had requested that he be shackled” prior to the incident with
the belt. The trial court overruled the motion for a mistrial.
{¶ 12} Sapp attached two of his own affidavits to his petition for postconviction
relief; the first is dated May 31, 2001, and the second is undated.
{¶ 13} In his first affidavit, Sapp stated that his “stun belt went off” in court and
that he yelled, “What the f*** going on,” because he “got a severe burn.” Sapp further
stated that the attorneys and judge had “a conference,” but that the jurors “could hear and
knew what was happening.” He acknowledged that the judge had instructed the jury
about the incident, but stated that it “did no good because they knew [he] was under this
restraint,” they saw him shackled at other times, and the jury was “upset and influenced
by this.”
{¶ 14} Sapp’s second affidavit reiterated and embellished on some of the
statements contained in the first affidavit. Additionally, Sapp stated that the incident
involving the malfunction of the belt was


-6-
why I did not get on the stand in my behalf, and try to express my regrets.
Why[?] what good would it do or have done? By this outburst from me do
[sic] to the “Stun Belt” incident * * * the jury wouldn’t have listened or
believed anything I would have to say. Even though my lawyers at this
time during my closing arguments urged that I take the stand, I couldn’t. I
even told them why, after what happened who would believe anything I had
to say. * * * I knew I was convicted, anybody could have seen that in the
courtroom and on the faces of the jurors that day. (Emphasis sic.)
{¶ 15} In response to this argument in Sapp’s petition, the trial court made the
following statements and findings:
* * * [A]s the court instructed the jury, no one was at fault in causing
the disturbance, this court properly instructed the jury so as to refocus their
attention on the evidence and away from the disturbance. The disturbance
was not prolonged and was not highly inflammatory, but, instead, consisted
of a statement from the defendant to a deputy, and, in the court’s exercise
of its discretion, was properly cured by an instruction to disregard, as
outlined above.
The defendant has submitted two affidavits in which he avers that
the jury looked like they were impacted by this “outburst.” However, the
defendant’s own affidavit testimony is insufficient to support this claim.
Due to a defendant’s motivation to serve his own interests in a post
conviction proceeding, “conclusory or self-serving affidavits presented by
the petitioner in support of his claims, without more, will not satisfy the


-7-
petitioner’s evidentiary burden.” State v. Pierce (1998), 127 Ohio App.3d
578, 586.
The court also notes defendant’s argument relates solely to matters
that existed in the record at the time of the direct appeal. Therefore, this
claim both fails on the merits and is barred by res judicata.
{¶ 16} The trial court correctly observed that the issue raised in Sapp’s affidavits
with regard to the accidental activation of the “stun belt” was apparent at the time of his
direct appeal and was barred by res judicata. It also reasonably concluded that Sapp’s
own affidavits were insufficient to support his claim that he was entitled to relief. Some
of the assertions in the affidavits, such as Sapp’s statement that the jury was present and
overheard the parties’ discussion about what had happened, are directly refuted by the
record. The trial court did not abuse its discretion in concluding that Sapp’s “new
evidence” about the malfunction of the stun belt during trial did not entitle Sapp to
postconviction relief.
{¶ 17} The first assignment of error is overruled.
III. Denial of Discovery
{¶ 18} In his second assignment of error, Sapp contends that the trial court’s
refusal to allow him to conduct discovery before it ruled on his postconviction relief petition
violated his constitutional rights. Specifically, he requested discover

Outcome:

Plaintiff's Experts:

Defendant's Experts:

Comments: