Portage County Legal News

Incomplete record hinders new DNA testing in 1997 murder case

ANNIE YAMSON
Special to the Legal News
Published: September 3, 2015

A divided 8th District Court of Appeals recently denied a request for DNA testing from a man who was convicted for the 1997 murder of his girlfriend.

Appealing from the judgment of the Cuyahoga County Court of Common Pleas, Brent Upton claimed that the lower court abused its discretion when it denied his application for additional testing. The court of appeals’ majority sided with the trial court based on an incomplete record.

Case summary states that, on June 25, 1997, Sonja Holivay’s body was discovered in her apartment. She had several knife wounds and an incision to her throat, but an autopsy revealed that Holivay was strangled to death. It was suspected that the knife wounds were an apparent attempt at making it look as though Holivay committed suicide.

At Upton’s trial, Tora Williams testified that she lived in the apartment across from Holivay’s. According to Williams, on the night of the murder, she looked through her door’s peephole and saw Upton and another man, Maurice Calhoun, enter Holivay’s apartment and leave the front door open.

Williams said she watched as Upton grabbed Holivay’s neck and removed something shiny from his pocket. After that, she saw Holivay slumped down on the floor as Upton and Calhoun left the apartment.

Significant forensic evidence was gathered from the scene of the murder. Two fingerprints were found on a knife in the bathroom, but one of them was unusable and the other did not match Upton.

DNA tests on the knife and the various blood stains in the apartment were found to be consistent with the victim, not Upton.

A search of Upton’s apartment revealed blood stains on some of his clothes but that blood was found to be his.

The car in which Upton traveled on the night of the murder also had blood stains but DNA tests were inconclusive.

Finally, a comforter that Williams testified Upton had wrapped around his waist during the murder was recovered and tested. The results were also inconclusive.

Upton was convicted and sentenced to 15 years to life in prison for Holivay’s murder. His subsequent 1999 appeal to the 8th District court was unsuccessful.

According to court documents, on May 15, 2014, Upton filed a request for DNA testing and a memorandum in support asking that the knife recovered from Holivay’s apartment be retested along with any other biological material that was recovered. Upton argued that advances in testing techniques could prove his innocence.

At this time, Upton had been working with the Ohio Innocence Project and he attached an affidavit from investigator Paul Spurgeon, who was hired by the project to work on Upton’s case.

Spurgeon stated that, in 2011, he interviewed Williams who admitted that she did not witness the murder. Williams stated that it was her daughter, Tiffany, who saw what happened.

According to Williams, she was under the impression that she was allowed to testify to what the daughter saw as if she had witnessed it since her daughter was a minor at the time.

Upton also attached affidavits from two forensic experts detailing advances in DNA testing and technology that could provide conclusive tests for samples that were previously inconclusive.

The trial court denied Upton’s application without giving any reasons other than to say that he failed to meet statutory prerequisites.

Considering his appeal, the 8th District court admitted that there was no dispute that Upton satisfied three of the five elements necessary for a successful petition.

The appellate panel noted that there was biological parent material from the scene of the murder that was uncorrupted and suitable for testing. It also admitted that the identity of Holivay’s killer was in dispute and that Upton had maintained his innocence.

“Regarding the fourth and fifth elements, (Upton) argues that advances in DNA testing and techniques can produce results for tests that were previously determined to be inconclusive,” Judge Frank Celebrezze wrote on behalf of the court of appeals. “He also asserts that tests that isolated only the victim’s DNA from samples are now more sophisticated and could result in isolating previously unknown DNA from blood collected at the crime scene.”

Celebrezze pointed out that those same arguments were made in State v. Ayers (2009-Ohio-6096) where the 8th District reversed the trial court’s denial of a DNA testing application.

But he also held that “each case is different and must be analyzed on its own merits.”

“Here, we do not have a transcript of the trial testimony,” Celebrezze wrote. “This significantly hinders review.”

While stating that “such testing should be liberally allowed to free a wrongfully convicted individual and engender confidence in our system of justice,” especially if advances in technology could provide new evidence, Celebrezze concluded that Upton did not provide “a sufficient record to review his assigned error.”

“Appellant has failed to sufficiently show that the results of further DNA testing would be outcome determinative in light of the other evidence adduced at trial,” Celebrezze concluded.

Judge Sean Gallagher concurred in judgment only, forming the majority and affirming the judgment of the Cuyahoga County court.

Judge Melody Stewart dissented, writing that the trial court was required by statute to provide its reasons for denying the application for DNA testing.

She cited several cases where the 8th District court has repeatedly held that the failure to provide an explanation was contrary to law and an abuse of discretion.

“It is unclear to me why the majority declines to reverse and remand this case for further proceedings consistent with established precedent, even as the lead opinion recognizes that the trial court did not provide the required explanation,” Stewart wrote.

The case is cited State v. Upton, 2015-Ohio-3341.

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