Login | June 29, 2022

Death sentence upheld for Cleveland man who killed car lot owners

DAN TREVAS
Supreme Court
Public Information Office

Published: May 23, 2022

The Supreme Court of Ohio recently affirmed the death penalty of a Cleveland man who killed the husband-and-wife owners of a car dealership while stealing two cars and money.
In a unanimous decision, the Supreme Court found overwhelming evidence that Joseph McAlpin entered the Mr. Cars dealership and robbed and murdered Michael Kuznik and Trina Tomola in April 2017. After independently weighing the aggravating circumstances and mitigating factors, the Court concluded that the death sentence was appropriately imposed.
McAlpin chose to represent himself during his trial, and “standby counsel” was appointed to assist with procedural matters. Among the challenges to his conviction, McAlpin claimed he is entitled to a new trial because his standby attorneys interfered with his trial preparation and strategy.
Writing for the Court, Justice Melody Stewart noted that McAlpin claimed numerous errors were made at his trial because while acting as his own attorney he did not know when to object or how to ensure his constitutional rights were protected. However, the Court found none of the errors impacted his “substantial rights,” and did not affect the outcome of the trial.
Along with joining the majority opinion, Justice Patrick F. Fischer wrote a concurring opinion, stating the Court needs to recognize that the Ohio Constitution permits “hybrid representation.” Hybrid representation is the right to represent oneself with the assistance of counsel. It provides clearer guidelines, giving attorneys a greater role than the restrictive duties of standby counsel, but still allowing defendants to participate fully in their defense, he concluded.
Trio Plot to Steal Cars
Andrew Keener testified at McAlpin’s trial that he met with McAlpin and his brother on the east side of Cleveland. McAlpin’s brother told Keener that he and McAlpin planned to steal some cars and sell them. He promised Keener money and drugs if Keener drove one of the vehicles off the lot.
Keener said he saw McAlpin, with a gun hidden under his sweatshirt, on a side street near Mr. Cars. About 20 minutes later, McAlpin called him to drive a 2006 Mercedes off the lot. McAlpin drove off in a 2008 BMW. The cars were driven to the west side of Cleveland, where Keener got out. He said he learned a few days later two people were killed at the dealership, and he was never paid. Keener pled guilty to charges related to Kuznik’s and Tomola’s deaths and was sentenced to six years in prison.
Kuznik and Tomola lived with their three children around the corner from Mr. Cars, a dealership started by Kuznik’s father. After calling and receiving no response from their parents near the usual closing time, the children became concerned. The oldest son, 19-year-old Colin Zackowski, drove to the lot around 9:30 p.m. and discovered Kuznik and Tomola had been shot to death along with the family dog, which regularly accompanied the couple at work. He called police.
Police Identify Suspect From Security Cameras
Cleveland police detectives learned that on the day of the murder two customers paid $7,500 in cash for vehicles. Kuznik’s wallet was stolen, and no other cash was found at the lot. The security video system, including the digital video recorder, was stolen.
Investigators were able to get footage from a business across the street from the Mr. Cars lot and from another business located one block away. Police then received an anonymous tip, stating that McAlpin and his brother were involved. Patrol officers recovered the stolen vehicles.
DNA evidence was collected from the scene and the vehicles. DNA matching McAlpin’s profile was found on computer equipment in the back office of Mr. Cars, from the inside of Kuznik’s pants pocket, and the inside of the stolen BMW.
McAlpin was arrested about two months after the murders. He denied any involvement. He was charged with two counts of aggravated murder, with death penalty specifications for each count, and several other crimes.
Evidence Pointed to Suspect
The Cuyahoga County Medical Examiner’s Office conducted the autopsies, and the deputy medical examiner testified that Kuznik and Tomola were shot at close range.
An FBI special agent assisted the investigation by reviewing the cell phone records, which showed McAlpin was in touch with his brother and Keener during the time of the murders. Investigators also tracked the calls to the location where Keener said he parked the stolen car. Location information from McAlpin’s cell phone showed he moved consistently with Keener’s account of the events.
Google searches on McAlpin’s account included information on different firearms and how to switch a title on a vehicle without the owner’s permission.
A DNA analyst with the medical examiner’s office testified that McAlpin’s DNA was almost certainly in the samples taken from the office equipment, BMV interior, and Kuznik’s pocket.
A jury found McAlpin guilty of all counts and recommended he be sentenced to death for murdering the couple. The trial court imposed the death penalty and an additional 63 years in prison for the non-death-penalty-related offenses.
Because McAlpin was sentenced to death, the Supreme Court automatically reviewed his case.
Attorneys Wrongfully Interfered With Case, Offender Argued
McAlpin raised 17 legal arguments in his appeal, including a charge that his court-appointed attorneys interfered with his trial strategy and preparation. McAlpin disagreed with his attorneys after their appointment and told the court he was going to represent himself.
The trial court warned McAlpin that he might face difficulties, and while honoring his request to represent himself, the judge appointed standby counsel. The judge informed McAlpin that the standby attorneys were there only to aid him with any procedural hurdles and could only act on his behalf if he no longer chose to represent himself.
McAlpin’s interference claim centered on a standby attorney’s role in coordinating the production of a DNA evidence report from an expert witness.
Before he removed his attorneys, his defense team hired a firm to conduct an independent DNA analysis of the evidence. After dismissing the attorneys, McAlpin told the court that he wanted all the information from the defense investigators forwarded to him and for the investigators to meet with him while he was in jail.
McAlpin complained he was getting no information from his standby attorneys regarding the expert witnesses or their reports. He asked that the attorneys be replaced, and the trial court appointed a second set of standby attorneys. Before receiving any information with the assistance of his new attorneys, McAlpin told the trial judge he was ready to proceed to trial.
After his conviction, McAlpin sought a new trial, stating the DNA analyst from the medical examiner’s office committed misconduct and the DNA evidence excluded him as a suspect. At a hearing on the request for a new trial, McAlpin maintained one of his new attorneys twice denied his request to have a defense expert’s DNA report prepared. McAlpin stated that the attorney told him the report would not be helpful to his defense.
McAlpin stated that the attorney gave the defense expert the impression that she could not communicate with McAlpin without the attorney present. McAlpin argued that instead of advising him, the attorney was interfering with his ability to gather information and prepare for his defense. McAlpin told the trial court if he had the defense expert’s DNA report, he would have been able to effectively cross-examine the medical examiner’s DNA analyst about her conclusions.
The Cuyahoga County prosecutor at the request-for-a-new-trial hearing argued that McAlpin was not entitled to a new trial and that his defense lawyer made a good decision by advising McAlpin not to obtain the defense expert’s report. The prosecutor explained that the attorney told McAlpin the results would not be favorable to him, and it would only confirm the information produced at the trial.
Supreme Court Analyzed Claim
Justice Stewart noted McAlpin did not object to the DNA expert’s testimony during trial, but only raised the issues in his appeal. Because of this delay, McAlpin had to prove that if not for the alleged interference by his attorneys, there was a reasonable probability that the jury would have acquitted him, the opinion explained.
McAlpin argued he needed the report to undermine the medical examiner’s testimony. But the Court found there was no indication that had a defense expert report been prepared, it would have aided in McAlpin’s cross-examination. In fact, McAlpin even confirmed that during a conversation with the head of the lab hired to assist his defense, he was told that a report would not be favorable to him, the opinion noted.
The Court rejected the interference argument and all of McAlpin’s other claims.
2019-0926. State v. McAlpin, Slip Opinion No. 2022-Ohio-1567.


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