STATE OF OHIO v. WILLIAM K. SAPP

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





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{¶ 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





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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.





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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





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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





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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