IN THE SUPREME COURTOF OHIO

STATE OF OHIO, Supreme Court Case No. 2009-1903Plaintiff-Appellee,

vs. On Appeal from the Greene CountyCourt of Appeals, Second District

EDUARDO BONILLA,Defendant-Appellant. Court of Appeals Case No. o8-CA-68

MEMORANDUM OF APPELLEE - S'TATE OF OHIO IN OPPOSITION OFJURISDICTION

STEPHEN K. HALLER #ooo9i72Greene County Prosecuting Attorney61 Greene Street, 2°' FloorXenia, Ohio 45385

ELIZABETH A. ELLIS #0074332Assistant Prosecuting Attorney

TX: (937) 562-5250FX: (937) 562-5107

COUNSEL FOR APPELLEE,STATE OF OHIO

EDUARDO BONIL.LA, Inmate # 383-585Ross Correctional Institution16149 St. Rt. 104ChiIlicothe, Ohio 456oi

APPELLANT, PRO SE

TABLE OF CONTENTS

Page

STATEMENT OF'I'HE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT:

PROPOSITION OF LAW NO. I:WHERE THE ACTIONS OF PROSECUTION ARE NO'I' IMPROPER, AND

WIIERE NO SUBSTAN'TIAL RIGHS OF THE ACCUSED ARE PREJUDICIALLY AFFECTED,DEFENDANT IS NOT ENTITLED TO REVERSAL BASED UPON PROSECUTORIALMISCONDUCT ................................................... ...........g

PROPOSITION OF LAW NO. 2:AN APPELLATF, COURT PROPERLY DISMISSES A CLAIM OF INEFFECTIVEASSITANCE OF COUNSEL BASED UPON COUNSEL'S FAILURE TO INTERVIEWAND CALL CO-DEFENDANT AS WI1'NESS . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

PROPOSITION OF LAW NO. 4:A TRIAL COURT DOES NOT ABUSE I'TS DISCRETION IN CONCLUDING THATA WI'I'NESSES RECANTED TESTIMONY NINE YEARS AFTER TIIE TRIAL IS NO1'CREDIBLF ......................................................... ...........12

PROPOSITION OF LAW N0. 4:A TRIAI, COIJRT PROPERLY QUASHES A SUBPOENA DUCES TECiJM WHICHRF,QUESTED CONFIDENTIAL ATTORNEY DISCIPLINARY DOCUMENTS WITHOUT AHEARING WIIERE THE SUBJECTATTORNEY REPRESENTED A CO-DEFENDANT ANDNO'I' TI-IE DEFF,NDANT . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

CONCLUSION ... .......................................................... 15

CER'1'IFICATE OF SERVICF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

STATEMENT OF THE CASE

Defendant-Appellant Eduardo Bonilla, aka "Moncy," aka Jesse J. Lugo, .Ir., aka Juan Ramon

Lopez ("Defendant") was indicted for Count 1- Complicity to Aggravated Murder in violation of R. C.

2923.03 and 2903.01, along with a specification for a firearm; Count 2- Conspiracy to Commit

Aggravated Murder in violation of R. C. 2923.01 (A) and 2903.01, along with a specification

pursuant to R. C. 2941,145; Count 3- Complicity to Murder, in violation of R. C. 2923.03 and

2903.02 (B), along with a specification pursuant to R. C. 2941.145; Count 4-Conspiracy to Commit

Murder in violation of R. C. 2923.01 (A) and 2903.02 (B), along witlt a specification pursuant to R.

C. 2941,145; CountS- Complicity to Commit Murder pursuant to R. C. 2923.03 and R. C. 2903.02

(B), along with a specification pursuant to R. C. 2941.145; Count 6- Compl.icity to Kidnaping in

violation of R. C. 2923.03 and 2905.01, along with a specification pursuant to R. C. 2941.145; and

Count 7-Complicity to Obstructing Justice in violation of R. C. 2923.03 and 2921.32 (A), along with

a specitication pursuant to R. C. 2941.141.

'fhe matter eventually proceeded to jury trial in October of 1999. The jury found the

Defendant guilty as charged of all counts in the indictment, but not guilty as to each and every

specification. At sentencing, the trial court merged counts one, two, three, and four, as allied

offenses of similar import. Defendant was sentenced as follows: for count one, life imprisoninent;

for comit five, fifteen years to life imprisonment; for count six, ten years; and for count seven, five

years. All counts were ordered to be served consecutively. Defendant was given 409 days jail time

credit.

Defendant, through counsel, filed his direct appeal in 1999, appealing his conviction and

sentence. The Court of Appeals of Ohio, Second Appellate District affirmed the conviction and

1

sentence in 2002. The Defendant next filed a pro se petition for post-conviction relief in 2005,

which was dismissed. 'I'hen in October of 2005, the Del'endant, through counsel, filed a motion for a

new trial. In said motion, the Defendant alleged that: 1.) he was unavoidably prevented from the

discoveiy of certain evidence; 2.) that his conviction was based upon peij ured testimony; and 3.) that

he received ineffective assistance of counsel at trial. 1'he trial court held several heaiings on the

motion for new trial, May 23, 2007, March 21, 2008, and May 23, 2008.

On August 14, 2008, the trial court issued its memorandum opinion and judgment entry

overruling the Defendant's motion for new trial. The trial court found that there is newly discovered

evidence, which if believed, would create a possibility of a different result if a new trial is granted, so

a hearing was warranted. However, the Court found that the recanted testimony of Stephanie I-Iarden

was not credible, nor was it likely to have materially affected the outcome of the trial. The trial court

fur-ther held that the claim of ineffective assistance of counsel is barred by res judicata, because it

was raised in his direct appeal, and the failure of interviewing witnesses would have been known at

the time ol'trial, and thus should have been raised in the direct appeal.

Bonilla once again appealed to the Second Appellate District, raising seven assignments of

error, all of which were overruled as without merit. The Defendant now raises 4 of those 7 errors in

this Court. The State submits that these alleged errors are only of interest to Defendant Bonilla and

present no constitutional questions or issues of great importance.

STATEMENT OF FACTS

Mark "Corky" Miller was a drug dealer.(Tr. 982). Miller's comrnon law wife, April Caldwell,

first became aware of the Defendant, whom Miller refeired to as "Nephew" sometime in April of

1998. At around that time, Caldwell overheard a conversation between Defendant and Miller where

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Defendant was telling Miller that the product would be there around six o'clock, indicating drug

activity. (Tr. 988).

Stephen Hunt, was acquainted with Miller and becaine acquainted with "Nephew" through

Miller, in approximately May or the beginning of June of 1998. (Tr. 502). Hunt related that he had

gone with the Defendant, Miller and another individual named "Jose" for the purpose of buying

automobiles. (Tr. 503). It was Miller's association with "Nephew" and "Jose" that would eventually

get him killed.

On August 1, 1998, Tominy Oiler and Wayman Yu got an apartment in Beavercreek. (Tr. 539-

40). Yu was basically a mule for a drug ring, carrying large amounts of cash to Chicago. Oiler would

assist Yu, and on two occasions took the money to Chicago. (Tr. 543). 1'he person they always dealt

with in Chicago was Jose Lopez. ('fr. 543; 546).

Oiler never met the Defendant until a trip to Chicago on September 30, 1998, when he met the

Defendant outside Lopez's aparttnent in Chicago on that date. (Tr. 547). Oiler then drove Yu,

Defendant, Jose Lopez, and Defendant's girlfriend, Stephanie Harden, back to Dayton, Ohio during

the early morning hours of October 1, 1998. (Tr. 549). During the drive back from Chicago, Oiler

overheard a conversation between Lopez and Defendant, in which Defendant said that they would get

their money from "Corky" one way or the other, either kill him or kidnap him. (Tr. 553). According

to Oiler, there was a $240,000.00 debt owed by "Corky" that had to be paid. Oiler also testified that

Stephanie Harden was asleep at the time Lopez and Defendant had that conversation. (Tr. 554). Oiler

drove straight to the apartment in Beavercreek that he had shared witll Wayman Yu. (Tr. 555).

On October 3, Oiler was at a home in Vandalia with the Defendant. There, Lopez and the

Defendant again discussed the plan to kidnap or kill "Corky." (Tr. 563). At that time, Lopez asked

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Oiler for his 9mm. 'I'he Defendant repeated his statement that they would get their money if they had

to kill or kidnap "Corky." (Id). Upon the arrival of police officers at the Vandalia house, Oiler was

arrested on outstanding warrants. Once arrested, he told the arresting officer of drugs in the house in

Vandalia and of the plot to kill "Corky." (Tr. 561; 694).

1'he arresting officer, Det. Brown of the Vandalia Police Department, then contacted Det. Cole

of the Beavercreek Police Department. Cole made contact with Oiler, who then related to Cole the

plan to kill or kidnap "Corky." (Tr. 562-63; 718).

Stephanie Harden met Defendant on June 13, 1998. (Tr. 809). Af1er spending two nights with

the Defendant, he was arrested and held in jail for a week. Upon bonding out, Harden moved with

him to Chicago. (Tr. 812). There Harden met "Begotez" whicli was the Spanish name for "Big

Mustache." (Tr. 814). Harden eventually became aware that Defendant was dealing diugs and that he

would take large amounts of money to "Begotez's" house. (Tr. 815). She described that Defendant

worked for "Begotez", and that Yu and Jose Lopez would bring the money from Ohio. (Tr. 816).

Harden identified "Begotez" as the person who died in Indiana, Lazaro Amezcua. ("Tr. 816-17).

Harden met the person known as "Corky" Miller in Ohio. According to I-Iarden, "Corky" called

Defendant "Nephew."

In September, "Begotez" threatened Defendant to get his money. (Tr. 820). The Defendant

was scared and told Harden that he would have to go to Ohio to get the nloney from "Corky" one way

or another. (Id.). Jose was also present when the threat was made by "Begotez." IIarden also later

overheard a plan to kidnap "Corky" and take him back to Chicago. (Tr. 822).

I Iarden returned to Ohio in the early morning hours of October 1. She denied sleeping on the

trip, but was not listening to any conversations. (Tr. 824). Upon arrival in the Dayton area, she was

4

dropped off at her sister's house because the Defendant did not want her at the apartment. (Tr. 825).

'I'hc next day she was sunimoned by the Defendant to the apartment in Beaverereek. (Tr. 826).

Defendant required Harden to then drive Yu to Fairborn, where he went to get a gun. (Tr. 827-28).

"Begotez" arrived from Chicago on that same date and called Defendant to come and meet

him. They met, and all went back to her sister's apartment. These individuals included Harden,

Defendant, a person known only as Victor, °Begotez", "Shawn" and one of Shawn's friends. (Tr.

829). From Harden's sister's home, she had to drive "Begotez" and Victor to Yu's apartment. (Tr.

830-31). On Saturday, October 3, Harden drove the Defendant to "Corky's" house and left him there.

(Tr. 832-33). Defendant showed up at her door on Saturday attcrnoon saying that "Corky" had pulled

a gun on him. (Tr. 834).

Harden was next required to pick up Victor and Jose and drive them to Meijer's. She assisted

them in buying ainmunition. This was captured on a security video from Meijer's. (Tr. 835-37; 468).

At Meijer's, they purchased shotgun shells, ammunition, and a fillet knife with a 12" blade. (Tr. 839;

465). 'I'he Defendant later told Harden that Victor was a professional hit-inan. (Tr. 840). Later that

evening, Harden joined Defendant and "Corky" at the cinema at the Dayton Mall for a movie. (Tr.

844). Harden and the Defendant left "Corky" at the movie theater and returned to Yu's apartment in

Beavercreek. Present there were Yu, Jose Lopez, "Begotez", Victor and °some white guy" who was

not Toniniy Oiler. (Tr. 846).

While at the apartment, Harden heard "Begotez" tell Defendant that they were going to kidnap

"Corky" Miller and get the money one way or the other, "Begotez" showed how lie would tackle

°Corky' and get him tied up with duct tape. (Tr. 848-49). "Begotez" then instructed Defendant to

return at 8:00 A. M. Sunday morning, October 4 to Yu's apartment.

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Defendant actually retumed to Yu's apartment after about 10:00 A.M. on Sunday morning.

Present were "Begotez", Victor and Jose. Yu was not present. (Tr. 851). Defendant then asked

Harden to drive him to Rooster's restaurant to pick up "Corky", which she did. (Tr. 854).

Stephen Htmt was at Rooster's along with Caldwell and "Corky" Miller. At about 3:30 P.M.,

Hunt saw the Defendant in the parking lot at Rooster's. (Tr. 509). Before getting into a car with the

Defendant, Miller pulled out a 9mm blackhandgrm and showed it to Hunt. (Tr. 511). I Ie identified

that as the handgun later recovered from Yu's apartment, the murder scene. (Tr. 512; State's Exhibit

24). Miller put that gun into his pants and left with Defendant. (Tr. 512).

From the restaurant, at Defendant's direction, I-Iarden drove Miller to his house to pick up his

car. (Tr. 855). Miller got into his car and followed them to Yu's apartment. While he was following

them, Defendant stated, "Ha, ha, that fool is about to die." (Tr. 856).

tJpon arriving at Yu's apartment, Harden did not want to go in. Defendant told Irer that he was

scared that he would not make it out alive. (Tr. 857). Defendanttold her, "we have to get this money

one way or anotlier." (Tr. 858). He instructed Harden to go into the bedroorn, close the door and not

come out no matter what, until Defendant told her. (Id). Upon entering the apartment, Harden saw

that "Begotcz" and Victor, with a gun in his pants, were present. (Tr. 858).

Miller sat on the floor and was offered a beer. Defendant left to get Jose, retuned, and then

locked the door. (Tr. p. 859). Harden was at the bedroom door, watching through a crack. She heard

Jose tell Miller, "1'he dope is in that suitcase. Tell us what you think. Go ahead and look at it and tell

us wlxat you think." (Tr. 860). As Miller bent down to the suitcase, he was tackled by "Begotez", who

tried to wrestle him to the ground. (Tr. 860-61). At that point, Miller managed to produce a handgun

and shot at "Begotez", who shot back. They fired back and lorth and'Begotez" fell to the ground.

6

Miller tried to run out the door. However, Victor came up behind him and shot him all the way down

the hallway. Miller collapsed at the front door. (Tr. 861).

Jose moved Miller's body from the doorway to the hallway and they all left, with Jose and

Defendant carrying "Begotez". Victor had a gun and told Harden to drive. (Tr. 862). "Begotez" was

in the backscat with Victor and Jose. Defendant was in the front passenger seat, and Harden was

driving. (Tr. 863). "Begotez" begged to be taken home and not to a hospital. (Tr. 863-64).

They had to stop to get gas before leaving Ohio. Harden had to pump the gas because

everyone else was covered in blood. When she returned, she found that Victor was now behind the

wheel, and he headed for Chicago. (Tr. 864). Victor decided to throw the gun away. Defendant then

wrapped it in his sock and threw it out the window. (Id).

At "Grandma's Restaurant", several exits before Crown Point, Indiana, Victor decided to stop

and get out of the car. Defendant made Harden trade pants with Victor because Victor's were soaked

in blood. Victor remained at that location and Harden drove on. (Tr. 965-66).

At the Crown Point exit, "Begotez" finally said he wanted to go to the hospital. Defendant

stated, "Let's just throw him out and call the police and say that we saw a dead body on the side of the

road." (Tr. 867). However, Harden drove to the hospital in Crown Point. Once there, Jose and

Defendant dragged "Begotez" out of the car and halfway across the yard and dropped him there.

I larden saw liospital security talking to Jose and the Defendant. (Tr. 868).

Harden eventually was taken into custody in the parking lot and identified Eduardo Bonilla

and Jose Lopez to Indiana police. She also gave the name of the person who had been dropped on the

lawn as "Begotez." (Tr. 869).

An Indiana Sherif'f's Deputy, James 'fomko, happened to be at St. Anthony's hospital in

7

Crown Point, Indiana and heard sonleone shout, "Oh my God, he's been shot." ("1'r. 329). He saw two

Hispanic males leaving a third inale lying on the grass and walking away. He identified the

Defendant as one of the two males. (Tr. 334).

Officer Gonzales of the Crown Point Police Department, who speaks fluent Spanish, was

dispatched to St. Anthony's Hospital on the report of a shooting victan. He indicated that both

Hispanic males had blood stains on them and identified Defendant as one of the two. (Tr. 345).

Defendant and Lopez gave false names. (Tr. 353). The two gave a story that they had been flagged

down at a gas station on 1-65 and picked up this guy and put hitn in a Blazer. (Id). They stated they

did not know the victim. (Tr. 356), "Begotez" was declared dead at St. Anthony's Hospital in Crown

Point, Indiana. Mark "Corky" Miller was dead in the apartment of Yu in Beavercreek, Ohio.

On October 5, Det. Combs and Potts of the Beavercreek Police Department, who had been

assigned to investigate Miller's shooting, traveled to Crown Point, Indiana, to interview the three

individuals they had in custody. (Tr. 411). They were all taken into custody and eventually

incarcerated in Greene County, Ohio. While in the Greenc County Jail, the DeI'endant made the

acquaintance of Michael Roberts, another inmate. (Tr. 782). Defendant detailed his part in the murder

of Mark "Corky" Miller and Lazaro'Begotez" Amczcua to Roberts. (Tr. 785-86). The Defendant tried

to hire Roberts to kill Stephanie and her mother. (Tr. 977). He also gave Roberts a phone number

where to get grenades to blow a wall in the jail to help the Defendant get out. (Tr. 978).

Now, seven years after the fact, Stephanie Harden came forward and alleged that the

prosecutors in the case, Steven Wolaver and David Mesaros, told her that if slie did not help convict

the Defendant, he would get out of jail and kill her and her mother, and without her there was no case.

She further claims that she was told what to say by the prosecutors. Both Mesaros and Wolaver

8

testified at the hearing and denied that they ever "told" witnesses to testify to certain evidence that they

fabricated. They further testified that they did not recall meeting with Harden together to discuss the

case. Moreover, at the March 21, 2008 hearing, Harden was caught in two lies on the stand regarding

her motivation for coming forward seven years later and her status as a foster parent through

Montgomery County Children Services. After reviewing the entire record, the trial court properly

concluded that Harden has offered so inany versions of events that she was not credible and the former

prosecutors were credible.

ARGUMENT

PROPOSITION OF LAW NO. I:

WIIERE TIIE ACTIONS OF THE PROSECUTION ARE NOT IMPROPER,AND WHERE NO SUBSTANTIAL RIGH1'S OF THE ACCUSED AREPREJUDICIALLY AFFECTED, DEFENDANT IS NOT ENTITLED TO AREVERSAL BASED UPON PROSECUTORIAI, MISCONDiJCT.

In order to reverse a conviction on the basis of prosecutorial misconduct for failing to

disclose favorable evidence, the Defendant must deinonstrate that the evidence is material to either

guilt or punishment. Brady v. Maryland (1963), 373 U.S. 83, 87. Favorable evidence is material if

there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different. United States v.l3agley (1985), 473 U.S. 667, 682. However,

no due process violation occurs if the evidence allegedly withheld is merely cumulative. State v.

Church (Apr. 30, 1999), Clark App. No. 98-CA-36.

The Defendant cannot deinonstrate that the evidence allegedly withheld is material, because

he cannot demonstrate that the outcome of his trial would have been different. Yu and Lopez both

pleaded guilty to conspiracy to murder charges prior to Bonilla's trial, and therefore would have been

9

subject to cross-examination. It is doubtful that their self-serving protestations of innocence would

have been believed in liglit of the overwhelming evidence to the contrary that was presented at trial.

Defendant has completely failed to demonstrate any prosecutorial misconduct, much less any

prejudice therefrom. Accordingly, his first assignment of error is without merit.

PROPOSl'I'lON OF LAW NO. 2:

AN APPELLATE COUR'f PROPERLY DISMISSES A CLAIMOF INEFFECI'IVE ASSISTANCE OF COUNSEL BASED UPONCOUNSEL'S FAILURE TO INTERVIEWAND CALL CO-DEFENDANTS AS WITNESSES

Initially, it is important to note that a motion for new trial pursuant to Crim.R. 33 is

addressed to the sound discretion of the trial court, and will not be disturbed on appeal absent an

abuse of discretion. State v. Schiebel (1990), 55 Ohio St3d 71, 564 N.E.2d 54, I(1 ofthe syllabus.

The Court of Appeals previously held that it is also within the discretion of the trial court to

determine wliether a motion for a new trial and the material submitted with the motion warrants an

evidentiaiy hearing. State v. Clark (Nov. 22, 2000), Montgomery App. No. 17839, citing State v.

Hill (1992), 64 Ohio St.3d 313, 333, 595 N.E.2d 884. An abuse of discretion connotes more than an

error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or

tinconscionable. f3lakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. The

State submits that the Defendant fails to assert that the trial court abused its discretion, except with

regard to its application of res judicata to his claim of ineffective assistance of trial counsel.

Upon review, this Court can find no abuse of discretion by the trial court in denying

appellant's motion based upon the doctrine of res judicata. The doctrine of res judicata "prevents

repeated attacks on a final judgment and applies to issues that were or might have been previously

10

litigated." State v. Russell, Franklin App. No. 06AP-498, 2006-Ohio-6221, at ¶ 12, quoting Stcrte v.

Sneed, Cuyahoga App. No. 84964, 2005-Ohio-1865, at ¶ 16.

In the present case, appellant previously filed a direct appeal that raised the claim of

ineffective assistance of trial counsel. First, the State submits that the 2°a District previously

reviewed the trial transcript and held that Defendant's privatcly retained counsel was not

ineffective. State v. Bonilla, (Mar. 2, 2001) Greene App. No. 99 CA 118. Further, the trial court

correctly found that the Defendant's instant claim that his counsel failed to interview and call two

co-defendants as witnesses, was something the Defendant knew or should have known at the time

his merit brief was tiled.

Despite Defendant's concession in his merit brief below that his trial counsel stated during

opening arguments that he did not know what Yu or Lopez were going to say, he now argues that

he needed to rely on evidence outside of the record to demonstrate how their testimony would have

supported his theory of the case. However, this is traditionally within the purview of a petition for

post-conviction relief, of which the Defendant has previously filed two, albeit untimely. Thus, he

also could have raised this in previous post-conviction motions that have been filed or he could

have filed a timely petition for post-conviction relief. 'fhe Defendant did not do that, and has

thereby waived any error. Under these circumstances, the trial court had discretion to deny, on the

grounds of res judicata, appellant's motion for new trial. Russell, supra; State v. Sanders (May 19,

2000), Portage App. No. 99-P-0067.

Moreover, the Court of Appeals correctly determined that even if his claim had properly

been raised, Defendant camiot demonslrate that his counsel acted inel'f'ectively for failing to

interview Yu and Lopez and call them as witnesses. State v. Bonilla, Greene App. 2008 CA 68,

Il

2009-Ohio-4784, ¶47. 'l'he Appellate Court properly reasoned that it is reasonable for counsel to

assume that Yu and Lopez would have favorable testimony to offer, in light of their pleas to

conspiracy to murder and Bonilla's defense was that no conspiracy existed, Id.

PROPOSITION OF LAW NO.3:

A TRIAL COURT DOES NO'I' ABUSE ITS DISCRETION INCONCLUDING THAT A WITNESSES RECANTED TESTIMONYNINE YEARS AF'1'ER THE TRIAL IS NOT CREDIBLE.

As previously stated, appellate review of a trial court's denial of a motion for a new trial is

limited to an abuse of discretion. Thus, in Defendant's fourth assignment of error, this Court must

look to whetlier the trial court abused its discretion in determitiing that Stephanie Harden's recanted

testimony is not credible.

The State acknowledges that as an initial matter, there is some confusion in the trial court's

entry regarding the dates of the events. "1'his is probably due to the fact that while Stephanie Harden

pleaded guilty to Conspiracy to Commit Aggravated Murder on December 23, 1998, she was not

sentenced, and therefore convicted until after Defendant's trial in October of 1999. I-Iowever, given

the fact that the substance of the trial court's analysis has little to do with the dates of the events, as

illustrated below, the trial court did not abuse its discretion.

In State v. Petro(1947), 148 Ohio St. 505, 509, this Court held that the denial of a motion for

a new trial based upon testimony that was merely impeaching or at most cumulative was not error.

In overruling the Defendant's motion for new trial, the trial court read the entire transcript of the

trial. It concluded that the State called many witnesses, and Stephanie IIarden was hardly its star-

witness. (Judgment Entry 8/14/08, p. 10) The trial court also found that even if her testimony had

not been presented to the jury, there was overwhelming evidence of the Defendant's guilt and12

certainly sufficient evidence for the State to have secured a conviction against Bonilla. (Id.) Taking

the analysis even further, the court assumed that even had Harden testified at trial as she testified at

the hearing on the new trial motion, her testimony would not have added anything for the defense.

(Id.) The court found that Harden's testimony merely climinated facts from the State's case, most of

which was established through other witnesses, and is cumulative of Bonilla's testimony. (Id.)

Finally, the trial court found that Harden lacked credibility with her prior inconsistent statements and

testimony and that she has a motivation to lie since the Defendant is/was her paramour. (Id. At 11.)

The trial couit deteniiined that in order to believe Harden at the hearing on the motion for new trial,

it would have to find that the testimony of fornier Assistant Prosecuting Attorneys Wolaver and

Mesaros is false, her multiple and lengthy statements to both Indiana and Beavercreek Police are

false, and her trial testimony which was corroborated by other witnesses is false, and that she

perjured herself wben she entered a plea of guilty to Conspiracy to Murder. The trial court declined

to make those findings and instead found Harden was not credible at this time. With such a

thorough and well-reasoned analysis, the Court cammot find an abuse of discretion.

Stephanie Harden is simply not credible, as she was caught in multiple lies while on the staiid

at the recent hearing. She twice testified that she was the foster parent of two kids through

Montgomery County Children's Services, However, she then acknowledges, seconds later, that she

cannot be a foster parent because she has a felony conviction, (Tr. 3/21/08, p. 63). She also told the

court that the reason that she came forward, 7 years after the fact, was because she had these two kids

in her life, however, it was laier established that the two kids that inspired her to corne forward had

not yet been born. (Tr. 3/21/08, p.91-92).

Moreover, the Court of Appeals properly determined that the statements in Harden's motions

13

do not support the assertion that the State knowingly presented perjured testimony from Harden. In

the sentencing memorandum filed on January 26, 1999, Harden's counsel explained that while

Harden was iniluenced and controlled by Bonilla, she was still responsible for her involvement in the

conspiracy to commit murder. The Court of Appeals found that this memo aeknowledges Harden's

participation in the conspiracy, and her statements regarding no prior knowledge or premeditation of

the events merely appears to deny that her actions were premeditated, and thus, did not put the State

on notice that her testimony was perjured. Bonilla, 2009-Ohio-4784, ¶67-68. Accordingly, the

Defendant's third assignment of error is without merit and this Court should deny jurisdiction.

PROPOSITION OF LAW NO. 4:

A TRIAL COURT PROPERLY QUASHES A SUBPOENA DUCESTECUM WHICH REQUESTED CONFIDENTIAL ATTORNEYDISCIPLINARY DOCUMENTS WITIIOUT A HEARINGWHERE THE SUB.IECT ATTORNEY REPRESENTED ACO-DEFENDANT AND NOT THE DEFENDANT.

In the instant case, the Defendant requested a subpoena duces tecum for a copy of a

disciplinary complaint that was filed on Harden's behalf against her attorney, Dennis Gump in

1999. However, a criminal defendant has no expectations of due process in the confidential

attorney disciplinary matter involving a co-defendant's complaint against her attorney. Moreover,

Harden testified that she filed a complaint against her attorney, and the record reveals that even

Defendant's counsel appears to think it meritless. (Tr. 3/21/08, p.98). The issue ot'Dennis Gump's

represcntation of witness Harden is completely irrelevant to the Defendant's motion for new trial

and tl-ms, properly quashed by the trial court.

Further, pursuant to Gov. Bar R. V§ I 1(E), a grievance filed with the Office of Disciplinary

Counsel remains confidential unless or until a Porinal Complaint based upon that grievance is

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certified by the Board of Commissioners on Grievances and Discipline, or an exception listed in

Gov. Bar R. V§ 1 I(E)(1)(a-d) applies. No Formal Complaint was ever filed certified in the matter

of Gump's representation of Harden, and Bonilla does not argue that any of the exceptions apply.

Therefore, the trial court properly quashed the subpoena.

CONCLUSION

Based upon the foregoing, it is clear that llefendant's assignments of error are without merit.

The Defendant received a lair trial, a fair hearing on his motion for new trial, and there is no issue of

great importance or constitutional question. Accordingly, this Court should decline to accept

jurisdiction in this case.

Respectfully submitted,

OFFICE OF THE GREENE COUNTYPROSECUTING ATTORNEY

By: ^^ ^JbSTEPHEN t. HALLER (#0009172)Prosecuting Attorney

By:ZAAE"1'H A. ELLIS (#00743320

Assistant Prosecuting Attorney

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CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was sent to Eduaordo I3onilla, Iimiate #383-

585, PO Box 7010, Chillicothe, OH 45601-7010, by regular U. S. Mail on this date same was

filed of record.

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