Bookmark this page on your mobile

QR Code image

What is this?

Daily Court Reporter - News Death row inmate’s appeal earns access to DNA test result


Death row inmate’s appeal earns access to DNA test result

Dan Trevas, Supreme Court of Ohio

When a judge fails to comply with the state DNA testing law, the Ohio Supreme Court has jurisdiction to hear an offender’s appeal, the state’s high court ruled recently.

The Court ruled 5-2 that a laboratory report’s conclusions about a DNA test are not equivalent to actual test results. Therefore, the trial court partially failed to meet the requirements of R.C.2953.81, which states that DNA testing results must be provided to an offender.

The ruling came in the case of death row inmate Tyrone Noling. The Supreme Court ruled that Noling is entitled to the DNA profile of an unknown male, which was obtained by testing a cigarette butt found at a 1990 crime scene. The decision marks the third time the Court has issued an opinion on a postconviction relief appeal from Noling.

Writing for the Court majority, Justice Patrick F. Fischer explained that, while the law does not define the “results of the testing,” it is clear from reading the entire Ohio Revised Code section regarding DNA tests that “results of the testing” means the DNA profile developed by a crime lab after testing the evidence. The Court rejected Noling’s request for additional materials, such as lab notes, and it upheld a trial judge’s decision not to conduct additional tests on other crime scene evidence.

Chief Justice Maureen O’Connor and Justices Terrence O’Donnell and Judith L. French joined the opinion. Tenth District Court of Appeals Judge William A. Klatt, sitting for former Justice William M. O’Neill, also joined the majority.

Justices R. Patrick DeWine and Sharon L. Kennedy dissented. Justice DeWine wrote that the law is crafted to narrowly limit appeals to three specific rulings on DNA tests by a trial court, and what constitutes “the results” of a DNA test is not one of them.

Convict Seeks to Prove Innocence

Noling was found guilty of the aggravated murders of Bearnhardt and Cora Hartig in their Portage County home in 1990. He was sentenced to death, and the Supreme Court affirmed his conviction in 2002. He has filed several actions in federal and state courts, including requests for DNA testing of items found at the crime scene. Noling claims that with more-advanced DNA testing than was available during his 1995 trial, the evidence may point to another suspect.

Noling maintains his innocence and has spent nearly two decades attempting to link DNA on a cigarette butt found on the driveway of the Hartig home to other evidence, including shell casings from a fired weapon and ring boxes in the Hartig home.

Prior to his initial trial, a DNA test was conducted on the cigarette butt, and it excluded Noling and the others tried with him for the murders. In 2008, the trial judge rejected retesting of the cigarette butt. In 2010, Noling sought again to have the cigarette butt tested, claiming that newly discovered evidence pointed to other suspects. One other suspect was Daniel Wilson, who was described to authorities by his foster brother as being a violent person who broke into homes at the time of the Hartig murders. Noling claimed that previous DNA analysis of the cigarette butt did not exclude Wilson as a source of the DNA.

Noling also identified other possible suspects, including the Hartigs’ insurance agent, who defaulted on a loan from the Hartigs. Noling argued that more-advanced DNA testing could possibly match the unidentified DNA on the cigarette butt to one of the suspects, whom prosecutors had not disclosed to Noling prior to his original trial. The trial court again denied the testing request, and Noling appealed.

Second DNA Test Ordered, New Requests Added

In 2013, the Ohio Supreme Court ruled that a change in state law permits the trial court to order the testing requested by Noling. The trial court was directed to consider if biological material from the cigarette butt could be used to identify another suspect. (See 2013 Supreme Court Clarifies Requirements for New DNA Testing of Biological Material in Criminal Cases.)

As the case returned to trial court, Noling amended his DNA testing request to include the shell casings collected from the Hartigs’ kitchen and ring boxes from their bedroom. He also asked that the shell casings be submitted to the FBI’s National Integrated Ballistic Information Network (NIBIN) for a possible match with the missing murder weapon.

Prosecutors objected, arguing the shell casings and ring boxes had been contaminated and were not suitable for DNA testing. The state noted the evidence was collected and examined at a time before standards were put in place to handle evidence without contaminating DNA. The state also objected to submitting the casings to NIBIN because the request was unrelated to the DNA test request.

The trial judge rejected the request to submit the shell casings to the federal database, stating that there was no procedure in state law that allowed Noling to make the request.

Test Results Disputed

The trial court ordered the Ohio Bureau of Criminal Investigation (BCI) to collect DNA evidence from the cigarette butt and to compare the DNA profile created from the evidence to DNA profiles in the Combined DNA Index System (CODIS), a database created by law-enforcement agencies. BCI confirmed that Wilson’s DNA was in the database that was searched. The DNA profile from the cigarette butt did not match anyone in the CODIS database, including Wilson’s.

The state provided Noling with a one-page report that explained how the DNA profile was created from the cigarette butt, but did not provide him the DNA profile that BCI created.

Noling asked the court to allow Orchid Cellmark Laboratories (Cellmark) to test the shell casings and ring boxes for DNA, stating that the company was better equipped than BCI to determine if it could gather DNA from the items. The trial court directed BCI to report whether there was the quality and quantity of evidence available to conduct DNA tests, and BCI found that the shell casings and ring boxes were contaminated and unsuitable for testing. The trial court dismissed Noling’s application for testing based on BCI’s report.

Noling appealed to the decision to the Supreme Court. At the time of his appeal, R.C. 2953.73(E)(1) provided death penalty recipients with only a right to request that the Supreme Court hear an appeal of a denied DNA testing request. Noling argued the law was unconstitutional, and in 2016 the Court agreed. (See Post-Conviction DNA Testing Appeals Process Unconstitutional.) While the Court ruled Noling had a right to appeal, it did not rule at that time on his claims or whether the law allowed the Court to rule on the three testing requests.

Law Limits Appeals of DNA Issues

Justice Fischer’s opinion explained that when there is a request for DNA testing, the offender must sign an acknowledgment form that states the common pleas court has “sole discretion” to decide whether the offender is eligible to make the DNA request. If the offender meets the criteria for having a request accepted, R.C. 2953.72(A)(8) provides that, with three exceptions, the discretionary rulings of the common pleas court are not appealable to any other court. The Court listed the three discretionary decisions that are appealable:

whether an individual is an eligible offender to request a test

whether an application meets the criteria to be accepted

whether an application should be accepted.

Court Finds Duty to Provide Full Testing Report

The Court held that R.C. 2953.81(C) states that a court or testing authority “shall provide a copy of the results of the testing” to the prosecuting attorney, the Ohio Attorney General, and the offender. The Court explained that Noling’s challenge to the trial court’s failure to provide him a full report of the DNA test is a claim that the court did not comply with a mandatory duty to provide the results. That makes the issue appealable, the majority concluded.

“As Noling is not appealing the manner in which the provision was carried out, but whether the provision was carried out, this court has jurisdiction to hear the claim,” the Court stated.

The Court determined that the law required BCI to create a DNA profile by testing the sample taken from the cigarette butt and to compare “the results of the testing” to the CODIS database. This process checked for DNA matches with the profiles contained in CODIS. Because the only data that can be compared with the DNA profiles in CODIS is another DNA profile, “results of the testing” must be a reference to the DNA profile, the Court ruled. The Court ruled that, as a result, Noling is entitled to only the DNA profile created by BCI and no more.

The Court stated the Noling is not entitled to the lab reports or other underlying scientific data that BCI used to produce the profile. It also ruled that the discretionary decisions to deny sending the casings to test against the FBI’s NIBIN, the denial of providing DNA to Cellmark, and the rest of Noling’s testing requests are not the issues the Supreme Court has jurisdiction to hear on appeal.

The Court remanded the case to the trial court to ensure that Noling is provided with the DNA profile of the unknown male suspect but no more, and it dismissed the remainder of Noling’s claims.

Dissent Would Fully Reject Appeal

In his dissenting opinion, Justice DeWine wrote the legislature created the procedure to allow an offender to obtain postconviction DNA testing in limited circumstances, and because it is a special procedure, there is no general right to challenge the trial court’s determinations. Rather, the only right to appeal is that which is set forth specifically in the statute at issue, R.C. 2953.72(A)(8). Justice DeWine wrote that the trial court’s decision about what constitutes “the results of the testing” does not fall within the limited number of trial-court determinations from which the legislature has authorized an appeal. As a consequence, he concluded, “this court lacks jurisdiction to consider Noling’s appeal on that issue.”

Justice DeWine noted that an offender who believes the trial court failed to carry out a mandatory duty is not without options to contest the court’s work. He stated the offender could seek a writ of mandamus from an appeals court to direct a lower court to carry out a duty.

2014-1377. State v. Noling, Slip Opinion No. 2018-Ohio-795.

A pdf of the opinion can be found online at:

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.

Date Published: March 22, 2018


Supreme Court of Ohio


Check out the green (and gold) Raider Open House March 17

St. Patrick’s Day on Saturday, March 17, is the perfect day to visit Wright State University, whose school colors just happen to be green and gold. Raider Open House, held from 9 a.m. to 12:30 p.m., begins in the Student Union.

Enrollment in the University of Dayton School of Law's graduate program thriving

Enrollment in the University of Dayton School of Law's graduate program in government contracting and procurement has been more popular than anticipated since starting last summer, according to Dean Andy Strauss.

Second chance for four manatees following months of rehabilitation and care

Last week four rehabilitated manatees were returned to their natural waterways by SeaWorld Orlando, The Florida Fish and Wildlife Conservation Commission (FWC), South Florida Museum, Cincinnati Zoo & Botanical Garden, the Jacksonville Zoo and Gardens and Sea to Shore Alliance.

Sinclair bookstore celebrates Women's History Month

March is Women's History Month. To mark this event, Sinclair Bookstore is offering several titles for readers young and old at 25% OFF.

UD earns at-large bid in 2018 NCAA Tournament

The University of Dayton women's basketball team was selected to compete in the 2018 NCAA Division I women's basketball tournament with an at-large bid.

University of Dayton’s 16th annual Celebration of the Arts

Engineers make music. Mathematicians show their brushwork. And dancers take the stage. Nearly 250 University of Dayton students from almost every field of study will participate in the 16th annual Celebration of the Arts, an evening designed to bring the campus and greater Dayton community together through exhibits and performances.

WSU golf finishes at Cape Fear

The Wright State golf team finished seventh at the Cape Fear National Intercollegiate.

Electric cars were among highlights of this month’s Columbus Auto Show

The use of electric vehicles is slowly gaining traction around the country and those vehicles were among the highlights of this month’s Columbus International Auto Show.

Unintended consequences: MeToo may close doors previously open to women

As the MeToo movement continues its global circuit, a backlash seethes

Figuring out who businesses can sell their products or services to is not always simple

Businesses have the right to refuse service unless it crosses public accomodation laws from the federal to local level of U.S. government, but those instances are not often cut and dry, as demonstrated by several current high-profile court cases.

Congress tanks – but does it care?

We’re at a watershed moment in American political history. Our Congress — I’m talking about the people’s body, the institution created by our founders, and not just the men and women who currently inhabit it — is in deep trouble. And no one seems to be offering hope.

Man who used fake identity for 19 years pleads guilty to making a false statement on passport application

Fred Aundraus Gaston III, 44, of Cincinnati, pleaded guilty in U.S. District Court to a crime related to using a fake identity since 1999.

Hi-tech cars could lead to more cybersecurity issues

Cybersecurity is an issue across industries that deal with connected technologies. That includes the automotive industry as connected and autonomous vehicles are expected to be more common within the coming years.

Ohio Senate to consider guides for implementation of 5G wireless network

A committee in the Ohio Senate is expected to hear testimony in support of a revamped infrastructure bill meant to guide small cell tower placement on existing street lamps and utility poles in public rights-of-way.

OSU study: Teachers fail to report violence

A nationwide study tracking violence against teachers while at school found that one fifth of these victims fail to report the incidents to school administrators, researchers at the Ohio State University reported.

Shale oil production in Ohio slips, but natural gas increases

Oil production of Ohio's horizontal shale region is down while natural gas was up last year.

Airbnb and other rental properties

Innovative and very popular technologies and services have created new opportunities for real estate owners to generate income by renting their properties. Companies like Airbnb, Inc., Craigslist, Inc. and, Inc. now provide the opportunity to easily advertise houses, condominium units and other types of real property as available for temporary use online.

Former basketball coach owes school district almost $8k for botched fundraiser

A former basketball coach of the Northwest Local School District is on the hook for nearly $8,000 related to a fundraiser he mismanaged during 2016.

More indictments related to $2.1 million drug conspiracy

Five people were added to a now 39-count indictment for their roles in a conspiracy to distribute at least 220 pounds of marijuana and 345 pills of Oxycodone in Northeast Ohio, law enforcement officials said.

Seven indicted in eastern Ohio deer and turkey poaching case

The Ohio Department of Natural Resources (ODNR) recently announced the indictment of seven individuals who allegedly participated in a poaching enterprise that is suspected of illegally killing white-tailed deer and wild turkey. These crimes are alleged to have been committed from the years of 2006-2017.