EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, November 3, 2016

Lividity Evidence/Withheld Police Report Contradict State's Timeline, Don't Lead to New Trial in Ohio Case

Here's an interesting lividity/prosecutorial misconduct case out of Ohio. In State v. Montgomery, 2016 WL 6393027 (Ohio App. 2016),

On the morning of March 8, 1986, the body of Cynthia Tincher was found in her car near the intersection of Angola and Wenz Roads in Toledo, Ohio. She died from a gunshot wound to the head. That same day, her roommate, Debra Ogle, failed to show up for work. Police searched for her after finding Tincher's body, and discovered that Tincher and Ogle's apartment door was unlocked. By the end of the day, they concluded that Ogle was missing. On March 9, 1986, her abandoned car was found with the key in the ignition. Her purse was in the car.

Thereafter, William Montgomery became a suspect in these murder and was interviewed.

During the interview, Montgomery claimed that in the early morning hours of March 8, 1986, after a night of drinking, he gave his gun, a Bersa .380–caliber semiautomatic pistol, to [Glover] Heard so he could protect himself on his walk home. He said that Heard later returned the gun with an empty six-round clip and told him that he shot and killed both Tincher and Ogle. Montgomery maintained that Heard did not disclose to him the location of Ogle's body.

Following additional questioning that afternoon, Montgomery changed his statement, this time admitting that he and Heard had taken a taxi to Tincher and Ogle's Hill Avenue apartment. He said they asked Ogle for a ride home and she agreed to drive them after she finished getting ready for work. Montgomery claimed that Ogle dropped him off at his apartment and Heard killed the women with Montgomery's gun. He said that Heard said he had to kill Tincher because she knew that Ogle had left with them and could tie them to Ogle.

The police, however, disbelieved Montgomery and eventually collected significant evidence that he was guilty of both murders. At trial, the prosecution presented a narrative/timeline that included Montgomery murdering Ogle on March 8, 1999. 

Six years after Montgomery was convicted, he

learned via a public records request that police had received a report from high school classmates of Ogle, including a man named David Ingram, who claimed they saw her alive on March 12, 1986, at 1:30 a.m. The report provided:

PRO stated that he and several friends were at the Oak Hill apartments on Hill when they saw a Blue Ford Escort with Debbie Ogle driving around the complex. Later they again saw her as a passenger in same auto. Debbie Ogle waved to them as they knew her from Rogers High School. She was with white male with long side burns. She did not appear distressed.

The State, however, had never turned over this report. Meanwhile, Montgomery retained forensic pathologists to evaluate the lividity evidence, with the Court of Appeals noting as follows:

[T]he autopsy report indicated that there was “moderate posterior fixed lividity and slight fixed lividity of the left anterior surface of the body.” Montgomery's expert pathologists explained that “lividity” refers to a discoloration of the skin that is useful in determining the position of the body at the time of death and whether the body was moved within the few hours after death. They described that lividity is fixed within about 12 hours after death. After lividity is fixed, the pattern of discoloration will not change.

Here, the officer who found Ogle's body testified that she was lying face down, but the pictures entered into evidence showed that she had been rolled onto her left side by the officers at the crime scene. Montgomery's expert pathologists stated that if Ogle's body had been face down for four days, lividity would have fixed on the front of her body and would not have changed when the body was turned to the left. They described that lividity shifted to the left side of Ogle's body when she was moved, thus she could not have died on March 8, 1986.

Montgomery thus contended that

this new evidence, especially when coupled with the police report that was withheld from him indicating that classmates saw Ogle alive on March 12, 1986, entitled him to a new trial. 

The prosecution responded by filing a motion to dismiss, claiming that

Montgomery failed to request leave to file a delayed motion and failed to show by clear and convincing proof that he was unavoidably prevented from filing his motion within 120 days of his conviction. 

Montgomery countered that 

without having the statement from the witnesses who claimed to see Ogle on March 12, 1986, there was no impetus to question the autopsy report. He emphasized that the timeline of the murders was essential to the state's case, and the basis for challenging that timeline did not exist until later.

The Court of Appeals, however, sided with the State, disallowing Montgomery's appeal. His execution is scheduled for for June 17, 2017. It will be interesting to see whether the Supreme Court of Ohio agrees to hear Montgomery's appeal.

-CM

http://lawprofessors.typepad.com/evidenceprof/2016/11/heres-an-interesting-lividityprosecutorial-misconduct-case-out-of-ohio-in-state-v-montgomery2016-wl-6393027-ohio-app-20.html

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Comments

Can the interests of justice, as a lay person understands it, play no role in appeals, at least in Ohio? The procedural grounds (120 day period, for example) is a "technicality," it would seem, when balanced against truth and someone's life. This is not a high school debate, after all. in which contestants are graded on technique.

Posted by: Hal Porter | Nov 4, 2016 10:43:41 AM

ARGH!

Posted by: Jennifer | Nov 4, 2016 6:13:35 PM

Then how did he lead police the the exact location of her body. He stated he wasn't there and this was a large field.I

Posted by: Shanna Champnoise | Mar 12, 2018 8:26:06 PM

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