The Akron Legal News

Conflicting evidence leads to reversal in infant death case

ANNIE YAMSON
Special to the Legal News
Published: June 18, 2014

The judgment of the Lorain County Court of Common Pleas was reversed recently when the 9th District Court of Appeals found the lower court abused its discretion by denying a defendant’s motion for relief from judgment in a case involving the death of an infant.

A three-judge appellate panel for the district court ruled the Lorain County court did not fully analyze whether Melissa Dovala was entitled to relief and it’s findings were not fully supported by the record.

Dovala was convicted in July 2005 of felony murder, felonious assault, child endangering and involuntary manslaughter for the death of R.S., a 5-month-old who was in Dovala’s care.

The involuntary manslaughter and felony murder convictions were merged and Dovala was ordered to serve 15 years to life in prison.

Upon direct appeal, the 9th District affirmed her convictions.

Dovala subsequently filed a petition for postconviction relief but the trial court found that all of her claims were barred by res judicata and dismissed the petition.

The 9th District disagreed and reversed the ruling in part, concluding that some of Dovala’s claims were not barred.

On remand, the trial court held a hearing during which three witnesses testified on Dovala’s behalf.

The trial court also admitted deposition testimony from Dovala and her lead trial counsel, James Burge, into evidence.

Case summary states that Burge’s deposition testimony indicated he sought the opinion of a neurologist named Tom Watson in preparation for trial.

Watson allegedly confirmed the injury sustained by R.S., causing her death, was “an inflicted injury with the onset of symptoms which would have occurred very quickly.”

In 2010, the trial court again denied Dovala’s petition for post-conviction relief and the 9th District affirmed that judgment the following year.

In 2013, Dovala filed another motion. This one sought to set aside the trial court’s entry denying her postconviction relief based on her discovery of new evidence.

Dovala had learned the neurologist Burge testified to consulting was actually a Dr. Thomas Swanson, not Watson.

In support of her motion for relief from judgment, Dovala attached an affidavit from Swanson.

In the affidavit, the doctor said he never discussed Dovala’s case with Burge and he never rendered a formal medical opinion on the matter.

In opposition to Dovala’s motion, the state filed a memorandum with an attached affidavit from Burge, in which he said he did not formally consult with Swanson but that the doctor did provide an unofficial opinion to his co-counsel, Laura Perkovic, who was married to Swanson at the time.

The Lorain County court subsequently granted a motion from Dovala to expand the record with a deposition of Perkovic.

However, the lower court never held an additional hearing and denied Dovala’s motion without any mention of the Perkovic deposition.

In her sole assignment of error upon appeal from the judgment of the trial court, Dovala argued that the denial of the motion for relief from judgment was an abuse of discretion, especially since her motion was based on newly discovered evidence that her trial counsel never actually consulted with an expert.

“The decision to grant or deny a motion for relief from judgment pursuant to Civ.R. 60(B) lies in the sound discretion of the trial court and will not be disturbed absent an abuse of discretion,” Judge Beth Whitmore wrote on behalf of the court of appeals.

Under Civ.R. 60(B), relief “should only be granted for an extraordinary and unusual case.”

Judge Whitmore noted that a party may be entitled to relief from judgment if there are “unusual circumstances that were not disclosed to all parties at the time of judgment, and which inherently affect the accuracy and reliability of the trial court’s judgment.”

In its judgment entry, the trial court stated it had “examined and compared the conflicting affidavits and depositions of James Burge, Laura Perkovic and Dr. Thomas Swanson.”

But the appellate panel found there was no discussion of Perkovic’s deposition.

“In its entry, the court carefully summarized the testimony of both Burge and Dr. Swanson, but made no mention of Perkovic’s,” wrote Judge Whitmore. “Even assuming the court did properly consider Perkovic’s testimony, we cannot conclude that the court fully considered whether extraordinary or unusual circumstances warranted Dovala’s relief under Civ.R. 60(B).”

While the trial court did find that Burge did not attempt to purposely misrepresent facts, the appellate panel concluded that the finding “did not necessarily preclude a finding” that the circumstances permitted relief.

“Additionally, the court found the testimony of Dr. Swanson and Perkovic to be ‘merely cumulative,’” wrote Judge Whitmore. “This conclusion is not supported by the record.”

The court of appeals pointed to Burge’s prior testimony, which indicated Swanson had rendered an opinion that was consistent with the state’s medical experts.

However, Swanson’s and Perkovic’s affidavits directly contradicted that evidence by stating Swanson never rendered any medical opinion on the matter at all.

Based on the conflicting testimony and the fact Dovala presented a meritorious defense, the appellate panel ruled the trial court abused its discretion by denying Dovala’s motion for relief.

The decision to reverse the Lorain County court’s judgment and remand the case was unanimous, with Presiding Judge Eve Belfance and Judge Carla Moore concurring.

The case is cited State v. Dovala, 2014-Ohio-2331.

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