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Saturday, February 4, 2012

From the Archives:

Stow had a year to remember
January 3, 2005 

by Andrea Cole, Reporter

Stow Looking back at the year, several stories have impacted the city and its residents, including changes in the citys administration, discussions of the Kent State airport and plans for a city center.

Ted Georgekopoulos freed after spending six years in a correctional facility for murder

After spending six years in the Summit County Jail for murder, 58-year-old Ted Georgekopoulos was freed on a $50,000 bond and reunited with his family in Stow.

Summit County Judge James R. Williams tossed out Georgekopoulos 1997 murder conviction based on the discovery of a photo released in 2003 by prosecutors, which was not seen by the defense.


See the full 14 page decision of the Ohio Court of Appeals, which reversed the conviction and ordered a new trial at:

To cut to the chase, here is how it ended, there is a lot to read if you are really into the story:

Plea deal keeps man out of prison: Having won new murder trial, he pleads no contest to lesser charge.

Byline: Phil Trexler

Sep. 14--Ted Georgekopoulos spent more than six years in prison while his family fought to prove he was no murderer. Two years ago, his children's efforts paid off when a single police photograph convinced a judge that Georgekopoulos deserved another trial.

This month, Georgekopoulos, armed with new scientific evidence, was about to get his day in court to prove once and for all that he did not shoot and kill his longtime girlfriend, Olga Suhre, in 1996. But on Wednesday, his legal odyssey ended unceremoniously with a no-contest plea to an involuntary manslaughter charge and a weapons charge.

The plea amounts to a peace treaty with prosecutors. Georgekopoulos will not have to risk a jury trial and the life sentence he would have received had he again been convicted.
Scene Magazine 
of January 21, 2004

Cleveland Scene: 1468 West Ninth Street, Suite 805, Cleveland, OH 44113, (216) 241-7550

From: http://www.clevescene.com/cleveland/anchors-gone-wild/Content?oid=1485205

Photo finish

Prisons are brimming with guys claiming to be innocent, but few have a photo to prove it.

As Scene reported more than a year ago ["The Photograph," October 9, 2002], Theodore Georgekopoulos was a successful Greek immigrant convicted of killing his fiancée, Olga Suhre. Georgekopoulos maintained that Suhre shot herself as he tried to wrestle the gun away from her. His family offered suicide notes that the woman had penned and stories of her unbalanced behavior.

But the most compelling evidence was a crime-scene photo that showed gun-powder burns on both of Georgekopoulos's hands. As independent investigators pointed out, it would be impossible to get such burns on the hand that pulled the trigger. And the only hand that lacked gunpowder burns was Suhre's.

So how could a jury ignore such compelling evidence? Easy. Jurors were never shown the photo. The family only discovered it two years ago during a meeting with prosecutors, who had apparently withheld the photo at the time of the trial.

Earlier this month, a judge tossed out Georgekopoulos's 1997 murder conviction.

But his cell door hasn't been unlocked yet. Prosecutors will have to decide whether to try him again, arrange a plea, or simply drop the charges. At least framing him is no longer an option.

October 09, 2002

From: http://www.clevescene.com/cleveland/the-photograph/Content?oid=1480585

The Photograph
While a wealthy businessman sat in prison for murder, Akron police had evidence that proved his innocence.

by Kevin Hoffman

The morning of December 3, 1996, brought relief for Theodore Georgekopoulos. The night before, a fire sparked in the building where he lived with his fiancée, Olga Suhre.

A faulty electrical heater may have been to blame. Worse, they thought their insurance may have lapsed. But the next morning, Suhre spoke with their insurance agent, then called Georgekopoulos with the good news: They were covered. 

Life always seemed to go Georgekopoulos's way. Born in Greece in 1945, he immigrated to the United States in 1967. A short, handsome man with a salt-and-pepper mustache and a lined face, Georgekopoulos made the American dream his own. At 51, he owned a home rental and remodeling business, a few dozen properties, and a bar in Akron. He had four children, all on the road to successful careers; his second-youngest, Pete, had become his partner.

Georgekopoulos's first marriage ended in divorce, but by 1996, he was engaged to marry again. Olga Suhre was a pretty blond woman of Greek descent almost 20 years his junior. They met when she answered a help-wanted ad for the Wagon Wheel, a small neighborhood bar he owned. Their romance blossomed, and 10 years later he asked her to marry him. By then, she was working part-time as hostess at another bar, Gus's Chalet. As a gift, Georgekopoulos bought her a bar named Rick's Hollywood Café.

On the morning of December 3, Georgekopoulos went to a car auction with friend Elias Tsakalis, a fellow Greek immigrant who owned a Dunkin' Donuts. They stopped at Burger King for lunch, then Tsakalis drove him home.

"Why don't you come in and have coffee?" Georgekopoulos asked. Suhre often made Greek coffee and pastries for them.

Tsakalis was tired. "No, maybe next time," he said and drove off.

Georgekopoulos went to his office, which was in the same building as his apartment. He checked his answering machine: no messages. His son Pete was patching the roof. Firefighters had cut a gaping hole to ventilate smoke the night before.

Georgekopoulos went to his apartment. "Olga, honey, you here?" he called.

"Yes, I'm here," she answered.

Later, Georgekopoulos would say he sensed something wrong. Usually, Suhre would kiss him and ask how his day was. On this day she didn't.

"Come, sit down to have coffee," she said.

Moments later, Georgekopoulos came running out of the building and yelled to his son in Greek. "Come down! Come down! Olga was shot!"

Pete climbed off the roof and raced into the building. He found his father on his knees, crying. Pete didn't see any blood, but the color had drained from Suhre's face. He felt her wrist for a pulse. She was alive. He dashed into another room and called 911, then went back to Suhre and held her hand. "Hold on, the ambulance is coming," he said. "You'll be all right."

Captain Ron Black, a 28-year veteran of the Akron police, heard a radio call at 2:48 p.m. asking any car in the area to respond. His shift was over, but he went anyway; it sounded serious. He arrived six minutes later to find a young man in work clothes halfway down the driveway, yelling that a lady had been shot. Pete led Black into the living room, where they found Suhre slumped in a puffy chair in the living room.

Georgekopoulos was lightly slapping her, trying to revive her. "Don't do this to me," he was saying. "Don't do this to me!"

Black spotted an entrance wound in her stomach. He found her pulse, but it was faint. He called dispatch. Tell EMS to "step it up," he said.

What happened? Black asked.

Georgekopoulos explained that Suhre had tried to shoot herself. He struggled to get the gun away from her. Then it went off.

Where's the weapon? Black asked.

Georgekopoulos pointed to the floor. The butt of a .357 Magnum poked from under the chair. By then, more cops had arrived. Black told Officer Adam Clark to take Georgekopoulos to the bedroom and get a statement.

In halting English, Georgekopoulos explained the incident. Months later, Clark quoted Georgekopoulos, putting his words into plain English:

"She came into the room with two cups of coffee, one for me, one for her. She sat down and pulled the gun out -- before I had the coffee, she had the gun. She pointed the gun at me and then turned it on herself. I then jumped over to her and tried to take the gun from her."

As Georgekopoulos narrated, he demonstrated the struggle. He had grabbed her hands and twisted the gun in toward her body until it was pointing down at her abdomen.

When EMS arrived, they couldn't fit the gurney through the door. They grabbed a bedsheet and slid it under Suhre's body. Black was among those who hoisted her from the chair and out of the house.

Sergeant Cynthia Christman arrived as Suhre was being carried away.

Did the victim ever attempt to harm herself before? she asked Georgekopoulos.

"No," he said.

Was she going to counseling or talking to a doctor for any sort of mental or physical problems?


Did she ever talk about attempting to harm herself?

"No," Georgekopoulos said, then revised his answer: Yes, but only in a kidding way.

Christman drove to Akron City Hospital, where Suhre was being treated. There was a chance she might regain consciousness and make a statement.

Georgekopoulos wanted to accompany Suhre to the hospital, but police officers stopped him. They had more questions.

Detective Michael Caprez's suspicion was aroused soon after he arrived, when he saw Georgekopoulos wiping his hands with a paper towel. "One of the things we do, when there's a weapon involved, we recover gunshot residue," Caprez later explained. "He may have been aware of that."

Caprez seized the paper towel as evidence and asked Georgekopoulos to join him in the kitchen to discuss what happened. The story Georgekopoulos told was similar to the one given to Officer Clark. Georgekopoulos went to sip his coffee, looked up, and saw Suhre pointing the gun at him.

"What's that?" Georgekopoulos asked.

"Why did you do this to me?" Suhre replied.

"What do you mean, what I did?"

Georgekopoulos then got up and swatted the gun to the side with his right hand. He grabbed her hands, and a struggle ensued. The gun went off.

When Sergeant Christman arrived at the hospital, Suhre didn't look good. Doctors cracked open her chest and were trying to keep her heart beating. They rolled the gurney past Christman. There would be no interview; Suhre was headed for surgery.

Christman drove back to Georgekopoulos's house and gave his son, Pete, a lift to the police station. His father arrived an hour later and was taken to a room for further questioning. Pete waited outside.

After a while, an officer told Pete that Suhre had died. The bullet severed a major artery.

Officers broke the news to Georgekopoulos. Pete heard his father wail in anguish. The cops emerged and told Pete, "You should be with him right now."

Pete found his father on the floor, inconsolable and crying hysterically. He was taken to St. Thomas Hospital to calm down.

After he was released, Georgekopoulos wouldn't return to the apartment. Too many bad memories. He stayed with his brother until Pete finished renovating a house in Silver Lake, where Georgekopoulos and Suhre were to live after their wedding. Furniture from his former life was packed into storage.

Georgekopoulos's second-oldest daughter, Angie, learned of Suhre's death the next day. She was at Akron City Hospital, where she worked as an intern on her way to becoming a doctor, when her brother-in-law, Nick Koinoglou, called her with the news. "Oh my God," Angie thought. "She finally did it."

Indeed, despite Georgekopoulos's claims to police, Suhre had a history of suicidal behavior. In 1990, Georgekopoulos told Pete he had found a strange note from Suhre. Pete kept a copy, which was scrawled in Greek. Translated, it reads: "Ted I am sorry for what I am about to do. Don't try to find me because I will be very far from life but I want you to know I love you very much. Olga."

They went to Georgekopoulos's apartment and called all their relatives, but no one had heard from her. They eventually found her in a corner of the building's spacious and cluttered basement, passed out on a blanket next to a bottle of liquor and a gun -- the same one that would kill her six years later.

Three years passed before Suhre made another apparent suicide attempt. One night Georgekopoulos returned to his apartment with his brother, Sam, and found Suhre passed out on the floor. They feared she had killed herself, but they were able to revive her. When she came to, she explained that she had taken too many pills.

Suhre's mood was known to be especially dour when she drank. Timothy Luna worked at Rick's Hollywood Café, where she would drink several days a week. "After two, maybe three drinks, she would often get depressed," he said. "Her face would get clenched, her eyes would get glossy. She wasn't the upbeat person she was when she wasn't drinking."

Georgekopoulos's children also noticed the powerful effect alcohol had on her. "To me, she was a totally different person when she drank," Pete says. "There's times that you could just be sitting talking to her and, you know, she could be saying everything's nice and she liked this and liked this, and once she has one, two, three drinks, she'd talk negatively about those things."

The next day, when she sobered up, Suhre was all apologies. "I'm sorry, I did a bad thing," she would say. And Georgekopoulos would accept it. "He loved her, but he enabled, like a lot of people do," says Angie. The children didn't think it was their place to intervene.

About a week before her death, Suhre drank at Rick's Hollywood Café with Georgekopoulos's sister, Margie Reis. At first, Suhre seemed cheery and talked of her wedding and the move to Silver Lake. But after a few drinks, Suhre said she wasn't happy. She was afraid Georgekopoulos wouldn't marry her after all. She sometimes felt like killing herself, according to Reis. The admission was especially troubling because that same night, as Suhre reached into her purse, Reis saw that she was carrying a gun.

On the day of her death, Suhre stopped by Gus's Chalet. Her bar tab included two Sea Breezes -- vodka mixed with cranberry and grapefruit juice -- along with a beer she bought for her boss.

Alcohol might not have been the only drug in her system. Paramedics who treated Suhre noted possible drug use. "As a doctor, when I looked at the EMS report and saw 'drug suspected,' my first question was: What do the tox screens show?" says Dr. Ron Flauto, Angie's husband. "It's protocol in every trauma center."

Yet nobody ever ran toxicology tests. A medical examiner later explained that Suhre had been transfused with so much blood that a test would be worthless.

After Suhre's death, Pete found a note sandwiched into her address book. Translated from Greek, it reads: "Ted I am begging you to forgive me for what I did. I will love you forever. Olga. Since you don't love and never loved me because your heart is elsewhere and not with me I want you to tell my mother that I love her very much. I want you to also tell my son that I love him. Goodbye. Olga."

Georgekopoulos even passed a lie detector test. The test was inadmissible, but he thought it would prove to prosecutors that his words were true.

Those closest to Suhre and Georgekopoulos had little reason to doubt his version of events. Suhre's family even stayed with him when they came to Ohio for the funeral.

"I don't have no reason to kill Olga," says Georgekopoulos. "I do a lot of things for her. She was not only my fiancée; she was my best friend."

Yet police were not so trusting. They summoned Georgekopoulos to the station several times to question him. Each time he obliged, speaking without legal counsel. But his story raised questions.

He initially quoted Suhre as saying, "Why did you do this to me?" although he would later claim he was misunderstood and that she had actually said, "Why is this happening to me?" Tests of the towel he used to wipe his hands showed traces of petroleum -- turpentine, maybe, or kerosene -- suggesting he had used it to wash off incriminating evidence.

Taken alone, the facts seemed innocuous enough. After all, Georgekopoulos speaks in broken English, so it's no surprise his quotes came out garbled. And the petroleum on his hands might have come from the car auction he visited before the shooting. He explained that he was wiping his hands because he had a cut; photographs show this to be true.

But taken with other evidence, it implied something more sinister. Suhre had gunpowder burns on her left hand, suggesting to the coroner that she had been in a defensive posture. Tests performed by the Ohio Bureau of Criminal Investigation and Identification indicated that the gun had been almost 12 inches from her arm when it fired, which seemed to refute Georgekopoulos's claim of a struggle in close quarters.

"The truth is in the details," says Caprez. "We let him tell the story, then we examine the details to see if it makes sense. Usually, if a person is telling lies, the details is what sinks him."

Four months after the shooting, police charged Georgekopoulos with murder.

Defense lawyer Barry Ward's strategy was to keep it simple, family members say. That meant letting the case rest on scientific evidence, without calling up a horde of witnesses to testify about Suhre's previous flirtations with suicide.

Initially, the plan suited Georgekopoulos, who didn't want to sully his dead fiancée's reputation by painting her as drunk and depressed. The family, too, had few reservations. "We trusted the system," says Angie. "We knew it was an accident."

But the strategy backfired almost immediately. It allowed prosecutors to portray Suhre as a woman in good spirits. Karen Kinel, a server at Gus's Chalet, saw Suhre shortly before her death and said she seemed vibrant and fastidiously dressed -- hardly the portrait of an unhinged woman on her way to suicide. Suhre was excited about her new home and marriage. "Things were going well for her," Kinel said.

Other employees also mentioned that Suhre expressed excitement about the new home. As Suhre left, she chirped to Kinel, "Goodbye, Cookie, see you Monday."

The defense countered with Timothy Luna's testimony that Suhre seemed to get depressed when she drank, but it was a feeble response to the chipper portrait painted by those who saw her shortly before her death. Jurors never saw the suicide notes nor heard the family's tales of finding Suhre unconscious. "We tell our lawyer to bring this stuff up," Georgekopoulos says. "We have two suicide notes . . . and he don't do nothing about it."

Ward refuses to comment on his trial strategy. "That's just stuff I'm not going to talk about," he says.

But as bad as the trial seemed to be going, Georgekopoulos's defense had an ace in the hole: Dr. Werner Spitz, the best medical examiner money could buy. He had performed autopsies on JonBenet Ramsey and Nicole Brown-Simpson, among others. He had even testified before the congressional committee that reviewed the autopsy of John F. Kennedy.

Moreover, Spitz had literally written the book on forensic pathology. For 20 years, his Medicolegal Investigation of Death had been the bible of forensic pathologists around the world. If the case was to come down to a contest of coroners, Summit Deputy Medical Examiner Roberto Ruiz seemed hopelessly overmatched.

Ruiz testified that it would have been impossible for Suhre to fire the shot that killed her. The bullet had gone through her right forearm before piercing her abdomen, and the back of her left hand was seared with gunpowder, indicating it couldn't have been on the trigger.

The evidence suggested that she was cowering in front of an attacker, holding her hands in front of her face when she was shot. "She was sitting in the chair, somebody was there with a gun, and instinctively you do that, you cover your face," Ruiz said.

Spitz had a different explanation. He noted that Georgekopoulos's left hand showed a mushroom pattern of gunpowder burns. That pattern would likely have been formed when the gunpowder blew out of the chamber of the gun, Spitz said, indicating the left hand was on the spine of the weapon, struggling to twist it away, just as Georgekopoulos had said.

"I mean, it all fits together like a puzzle," Spitz said.

Spitz may be brilliant, but modesty isn't among his strengths. His pronouncements -- delivered with the authority of a man who believes no word but his is worthy -- may have alienated jurors, Georgekopoulos's family says. "Werner Spitz is an arrogant, German old man," says Nick Koinoglou, Georgekopoulos's son-in-law. "He's strong-willed. Don't get me wrong. The guy knows his business. But when he's telling you something, he's God."

If jurors were offended by Spitz's highhandedness, Summit County Assistant Prosecutor Michael Carroll would give them more reason to question the doctor's credibility. He got Spitz to admit that he had been paid at least $5,000 for his work -- the implication being that the family paid him off.

Carroll even turned Spitz's own textbook against him, quoting to the doctor from a chapter titled "Homicide, Suicide or Accident."

"You also say that 'a gunshot wound in an area of the body not accessible to the victim or one that is accessible with difficulty --'" Carroll began.

"Yes," said the impatient Spitz.

"'-- is always suspicious of homicide.' Did you write that?" Carroll asked.


"That's all I have, your honor," Carroll said.

The jury deliberated six hours before returning its verdict: guilty. Georgekopoulos initially showed no reaction, but his son Pete shouted, "No way!" His sisters began to cry. Sheriff's deputies handcuffed Georgekopoulos, who by then was weeping.

At his sentencing, he told the judge, "I'm sorry for what happened, but I did not do it." He was given 15 years.

Georgekopoulos's children wasted little time in hiring Attorney John Pyle to appeal. He contended that Georgekopoulos was denied his right to effective counsel, because Ward failed to present voluminous evidence of Suhre's depression and suicide attempts. Included in the appeal were copies of Suhre's suicide notes and affidavits from Georgekopoulos's family members who had witnessed her depressive episodes.

But the appeal was rejected across the board, including by the Ohio Supreme Court in 1999.

Courts don't often buy the ineffective counsel argument, says attorney Elizabeth Kelley, who is working with Pyle on the appeal. It's an insular, protect-your-own profession, where lawyers are presumed competent until proven otherwise. And while Ward's strategy seemed particularly ill-advised, appellate courts must set a high standard, lest they be bombed with appeals on every case where a trial tactic fails. "The attorney's gotta be drop-dead drunk and incompetent," says Kelley.

Still, the family wasn't about to give up. "We all come from scientific backgrounds," says Angie. "And at the trial, listening to Dr. Ruiz . . . it just didn't make sense. It didn't make scientific sense. We said: There's gotta be something more."

The family contacted Richard Ernest, a forensic ballistics consultant from Fort Worth, Texas. He suggested something that, amazingly, no one had considered: Check the path of the bullet through the chair Suhre was sitting in. "That's the one stationary thing. You can't argue with the chair," Angie says.

The family hauled the chair out of storage, and Ernest examined it. "Lo and behold," says Georgekopoulos's son-in-law, Dr. Ron Flauto, "the bullet path is perpendicular to the ground."

It was an important find. At trial, the prosecution contended that Georgekopoulos had shot Suhre from almost 12 inches away, at about a 45-degree angle. The bullet's path indicates that's impossible, adding credence to Georgekopoulos's claim that he twisted the gun so it was pointed down at her abdomen.

The family took its findings to Summit County Chief Criminal Prosecutor Mary Ann Kovach, Deputy Medical Examiner Roberto Ruiz, and trial prosecutor Michael Carroll. Ruiz wasn't conceding the point, but Kovach, who didn't work for the prosecutor's office at the time of the trial, seemed more receptive, the family says. Still, the path of the bullet alone didn't prove that Georgekopoulos's finger wasn't on the trigger.

Until that moment, Georgekopoulos's children hadn't realized the importance of their father's right hand. All along, Georgekopoulos had been telling his children that police had taken numerous photos of his hands on the day of the shooting. Yet at trial, Caprez seemed to assert that no pictures of the right hand alone existed. Even today, he denies knowing about any such photos. "I never heard anything about them," he says.

Three days after their meeting with Kovach, Pete and brother-in-law Koinoglou went back to Kovach's office. "We explained to her there had to be more pictures," says Pete. "All that was presented to us at trial was two pictures."

Kovach suggested they check with the police lab. Pete and Koinoglou got the usual public-records runaround: They went to the detective bureau, then to the law director, who wanted something in writing. Two weeks later, police handed over a trove of about 36 pictures.

Most of the photos were unimportant: shots of the interior of the house, the tools police used during their investigation. But they found two photos showing the right hand -- the very evidence that Caprez denied existed.

Even more exciting, the photos clearly showed gunpowder burns between the first and second finger on Georgekopoulos's right hand. To the untrained eye, the burns look like a cluster of freckles, but they are actually tiny flecks of gunpowder, launched like mini-missiles when a gun is fired, embedded in the skin like a tattoo.

Georgekopoulos's lawyers sent the photographs to five experts in forensic pathology. All concluded that the marks were produced by gunpowder burns, also known as stippling. They further concluded that the presence of stippling on both hands proves that Georgekopoulos could not have fired the gun.

Wrote Dr. Sanford Edberg, a forensic pathologist in Pennsylvania: "It is impossible for a person to fire one shot from a revolver and have stippling burns on both of his or her hands because the hot gun shot residue is expelled outward from the revolver muzzle and firing chamber and thus the hand that fires the shot which is behind the muzzle and the firing chamber will not be exposed to the hot stippling."

And the only hand with no stippling was Suhre's.

Deputy Medical Examiner Roberto Ruiz didn't respond to Scene's repeated interview requests. But prosecutor Carroll says the photos don't change his opinion of Georgekopoulos's guilt. "We tried the case on the exact same defense," he says. "I was absolutely convinced that he shot her intentionally. These Georgekopouloses are desperate folks now, and they're doing whatever they can do."

Kovach declined comment on the appeal, but says the family could have obtained the photographs for the original trial. "The pictures were all available to them the whole time," Kovach says. "We told them it was there. They can go and look at it, just like we can . . . Certainly their lawyers knew that. This is not undisclosed evidence to me."

An affidavit written by defense lawyer Ward claims otherwise: "Recently I was shown a photograph of Mr. Georgekopoulos' right hand that shows the presence of stippling burns . . . At no time did either Carrol [sic] or any representative of the state show me this photograph or otherwise make me aware of its existence in preparing Mr. Georgekopoulos' defense."

An appeal based on the new evidence is expected to be filed any day. It asserts that the prosecutor's failure to turn over the photographs violated Georgekopoulos's "Brady rights" -- lawyer-speak for the accused's right to evidence favorable to his case. Further, the appeal says the photographs prove once and for all that Georgekopoulos is innocent.

The argument isn't a sure thing, but lawyer Elizabeth Kelley has high hopes. "It's like DNA," she says. "It's that certain."

Even Suhre's son from an earlier marriage, Matthew, thinks Georgekopoulos was wrongfully convicted. "I believe, based upon everything I know, that my mother's death was the result of an accident and that Mr. Georgekopoulos never intended to kill my mother," he says in an affidavit. "I have no objections to Mr. Georgekopoulos being released from prison."

For now, at least, Georgekopoulos remains incarcerated at the Trumbull Correctional Institution, where he is known as inmate #343190. He has already missed enough family moments to fill several photo albums: Pete got married. Angie got married. Three grandchildren were born; a fourth is on the way. Georgekopoulos's mother died, and his father is ill.

"The way I see it, my dad is being held hostage by the American justice system," says Angie. "The only thing that keeps him going is, he knows he's not alone. We're there emotionally, but he knows we're working hard." 


State v. Georgekopoulos, (Ohio 2005)


Motion for a new trial, abuse of discretion, newly discovered evidence, stippling.


Motion for a new trial, abuse of discretion, newly discovered evidence, stippling.


[Cite as State v. Georgekopoulos, 2005-Ohio-5106.]






CASE No. CR 97 04 0751 Appellee


Dated: September 28, 2005
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:

Per Curium.

Appellant, the State of Ohio, appeals the decision of the Summit County Court of Common Pleas granting Defendant's (Theodore Georgekopoulos) motion for a new trial. We affirm the decision of the trial court.

In 1997, Defendant was convicted of murder with a firearm specification as a result of events that took place on December 3, 1996. A detailed discussion of the underlying facts of this case can be found in this Court's decision State v. Georgekopoulos (Nov. 25, 1998), 9th Dist. No. 18797, affirming Defendant's conviction. This case has had a long post-conviction procedural

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history. The instant appeal, however, revolves around the decision of the Summit County Court of Common Pleas granting Defendant's motion for a new trial.

On October 9, 2002, Defendant filed a motion to vacate his conviction, or in the alternative, for a new trial, alleging that newly discovered evidence entitled him to a new trial. Defendant argued that a picture which depicted stippling (tiny gun powder wounds) on his right hand was never produced at trial, and the newly discovered picture demonstrates that the State's theory of the case was faulty. On August 14, 2003, the trial court conducted an evidentiary hearing on the matter. The trial court granted Defendant's motion on January 6, 2004, and Appellant appealed. This Court remanded the matter, finding that the trial court had failed to grant Defendant the required leave to file his motion before granting him a new trial.

Upon remand, the trial court granted leave to file said motion, and Defendant's motion for a new trial was granted on December 21, 2004. Appellant now appeals, raising one assignment of error for our review.

ASSIGNMENT OF ERROR "The trial court committed error when it granted the Defendant's motion for a new trial after remand."

In its only assignment of error, Appellant argues that the trial court abused its discretion by granting Defendant's motion for a new trial. We disagree with Appellant and affirm the decision of the trial court.

Court of Appeals of Ohio, Ninth Judicial District

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We review a trial court's decision to grant a motion for a new trial under an abuse of discretion standard. State v. Schiebel (1990), 55 Ohio St.3d 71, paragraph one of the syllabus. An abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.

Before a trial court may grant a defendant a new trial on the ground of newly discovered evidence, the defendant must show that the evidence: "(1) discloses a strong probability that it will change the result if a new trial is granted, (2) has been discovered since the trial, (3) is such as could not in the exercise of due diligence have been discovered before the trial, (4) is material to the issues, (5) is not merely cumulative to former evidence, and (6) does not merely impeach or contradict the former evidence." State v. King (1989), 63 Ohio App.3d 183, 191, citing State v. Petro (1947), 148 Ohio St. 505, 36 O.O. 165, 76 N.E.2d 370, at the syllabus.

Defendant maintains that the newly discovered photograph was exposed after trial, and in the exercise of due diligence, could not have been discovered earlier. The State takes the opposing position.

The facts leading up to the instant appeal are as follows: on December 3, 1996, Defendant and his fiancé, the decedent, Olga Suhre, were in their apartment. Suhre had just prepared coffee for herself and Defendant.

According to Defendant, Suhre called out to him. He looked at her and saw that

Court of Appeals of Ohio, Ninth Judicial District

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she was sitting in a chair and had a gun in her hand, pointing it at Defendant.1

Defendant claims that he attempted to grab the gun from her hand, a struggle ensued, and the gun went off. The State asserts that a different chain of events occurred, namely, that Defendant shot Suhre, and the gun did not go off accidentally.

The evidence at issue is a photograph, discovered in 2002, by Defendant's son, Pete Georgekopoulos, depicting Defendant's right hand immediately after the incident. Pete had the picture developed and blown up, and together with pictures previously introduced depicting stippling burns on Defendant's left hand, submitted the photographs to six experts; one ballistics expert and five forensic pathologists, to determine what the new picture depicted.

All six of Defendant's experts determined that the picture of his right hand depicted stippling burns, the presence of which was previously unknown.

According to Defendant's experts, the presence of stippling on both of his hands (which was established only after discovering the photograph in question) refuted speculation that Defendant could have pulled the trigger.

Sanford Edberg, M.D., a trained Forensic Pathologist was shown the photograph and asked to determine whether the marks on Defendant's hands were caused by stippling burns. He determined that they were. In response to a request

1 Olga Suhre apparently had made two previous suicide attempts, one with pills and the other with the gun involved in this incident.

Court of Appeals of Ohio, Ninth Judicial District

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to issue an opinion concerning whether the stippling marks would be consistent with the firing of a gun, Dr. Edberg, in a sworn affidavit stated that: "[b]ased on my training and experience, it is impossible for a person to fire one shot from a revolver and have stippling burns on both of his or her hands [.]"

Mark Flomenbaum, M.D., a Forensic Pathologist, also determined, by looking at the pictures given to him, that the flesh wounds shown in the photo of Defendant's right hand were in fact stippling burns. He stated in his affidavit that "the presence of stippling burns on [both of Defendant's] hands demonstrates that he could not have pulled the trigger on the revolver which fired the fatal shot."

Linda Norton, M.D., an Anatomic, Clinical, and Forensic Pathologist also testified that the wounds on Defendant's hand were caused by stippling burns. Dr. Norton stated that "[i]t is virtually impossible to fire any handgun and stipple the firing hand. In my twenty-seven years of investigating gunshot wounds I have never seen this occur."

Dr. Patrick Besant-Matthews stated that "the marks on both hands are in fact stippling burns and it is impossible for a person to hold the handle of a revolver and fire it to sustain stippling burns on both hands."

Dr. Werner Spitz testified at Defendant's trial in 1997. In October of 2002, he was shown the above mentioned photographs. Dr. Spitz stated that he had not been shown the photograph prior to 2002, nor was he aware of its existence. Dr. Spitz determined that the wounds on Defendant's hand were caused

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by stippling burns, and he testified that "the presence of gun powder stippling on both of [Defendant's] hands demonstrates that he could not have pulled the trigger on the revolver which fired the fatal shot."

Richard Earnest, a forensic scientist and ballistics expert, also stated his belief that the photograph in question depicted stippling burns on Defendant's right hand, and the presence of stippling on both of Defendant's hands disproved the State's theory of the events.

Additionally, Barry Ward, Esq., Defendant's trial attorney, testified by affidavit that he had never seen the photographs at issue, nor was he aware of their existence prior to 2002. Armed with this newly discovered evidence, Defendant filed a motion for a new trial which was eventually granted by the trial court on December 21, 2004.

Pointing to the requirements that Petro, supra, sets forth, the State maintains that the trial court erred in granting Defendant's motion for a new trial because the evidence of stippling on his right hand could have, with due diligence, been discovered before trial, or within the 120 day period after trial in which Defendant could have filed a timely motion for a new trial.

The State does not contest that the photograph in question is "newly discovered evidence material to the defense," however, it maintains that the information regarding the presence of stippling was provided to the defense prior

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to trial in the form of two police reports.2 Thus, we will focus on whether the police reports should have alerted the defense to the presence of stippling on Defendant's right hand, and whether, in determining that the reports did not alert the defense to that fact, the trial court abused its discretion in granting a new trial.

The two police reports that the State claims should have alerted the defense to the presence of stippling on Defendant's right hand were prepared by Detective Caprez. The first report notes the subject's name as Olga Suhre, born in 1963 (Defendant was born in 1945), and it states that the subject is dead. Later on the same page, Sergent Caprez does write that the subject had an "abrasion on top of left thumb, possible powder burns on web of pointer + middle finger on right hand."

In his second report, Detective Caprez wrote that "[o]n [Defendant's] right hand, in the webbing between his pointer and middle finger on the top of his hand was what appeared to be a pattern of powder burn about ½ to -

2 In its May 7, 2004 brief to this court, the State provided that: "The State does not contest the findings of the trial court that `the photograph of Defendant's right hand depicting stippling marks on the webbing between the index and middle fingers is newly discovered evidence material to the defense pursuant to [Crim.R.] 33(A)(6). However, the state does contest whether the information depicted in the photograph, that the defendant had stippling on his right hand, was provided to the defense prior to trial."

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of an inch in circumference and localized to the listed area." At trial, Detective Caprez was asked to explain what he had seen on Defendant's right hand.

Q: "I suppose it could have been a lot of things? A: "Could have been grease, could have been anything.

Q: "You saw it, that's how you described it? A: "Yes.

Q: "What happened to it? A: "It was wiped off by the rag." Defendant's trial attorney asked Detective Caprez at trial whether there were any photographs taken of Defendant's right hand.

Q: "[A]t no time were there actually pictures taken *** that depict only the right hand? A: "No."

The above mentioned experts testified that the Caprez reports had no significance to them due to Detective Caprez's testimony that the marks on Defendant's right hand had been wiped off with a paper towel. Prior to the discovery of the photograph in 2002 (which the defense had been told did not exist), no expert from the State or from the defense could testify that the description contained in the Caprez' reports conclusively established the presence or the absence of stippling. Based on extensive testimony presented to the trial court regarding stippling, its description, and the photographs, the trial court rejected the State's argument that the Caprez reports provided the same

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information as the photographic evidence regarding the presence of stippling on Defendant's right hand.

In evaluating whether a new trial may be granted on the basis of newly discovered evidence, Petro focuses solely on the "new evidence" and the effect of its discovery. Petro does not, as the State argues, discuss whether certain information may have been available prior to trial.

Assuming, for the sake of argument, that the police reports could have been construed as depicting stippling, we turn to the State's claims that the information contained in the reports should have put the defense on notice of the presence of stippling. The testimony before the trial court shows what the defense could have discovered prior to trial with due diligence. Even if the defense had been alerted prior to trial of the possible presence of stippling through the short sentence on Detective Caprez' report, the defense, as they did in trial, would have asked if there were any pictures of the hand in question and they would have been told no. Then, the defense would have gone to Detective Caprez and would have asked him to describe what he saw, and, as shown by his trial testimony, he would have stated that the mark he had observed had been wiped off. Thus, the testimony at trial conclusively shows that had the defense investigated the possibility of stippling prior to trial, based on the information contained in the Caprez reports, the result would have been that it was not stippling that Detective Caprez had seen and there were no pictures to show what it was.

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Evidence takes many forms. It can be photographic, testimonial or physical, and each form of evidence has a different probative value. The photograph in question is demonstrative evidence which has a probative value distinct from the value of the information contained in the reports. Neither party argues that the photograph could have been discovered prior to trial. The photograph depicts the presence of stippling, the presence of which was unknown during Defendant's trial. The value of the evidence of the photograph is clearly different from the information contained in the police reports.

As mentioned above, our review of a trial court's decision to grant a new trial is limited to a determination if, based on the evidence presented, the trial court abused its discretion in granting the defendant's motion for a new trial. An abuse of discretion is more than an error of law or judgment. Blakemore, 5 Ohio St.3d at, 219. It results "only when no reasonable man would take the view adopted by the trial court." Pembaur v. Leis (1982), 1 Ohio St.3d 89, 92. We find that, based on the above evidence, the trial court did not abuse its discretion in finding that the Caprez reports did not contain the same information as the photographs, and thus, the evidence of stippling was newly discovered.

Consequently, the decision to grant Defendant's motion for a new trial did not amount to an abuse of discretion.

The State next argues that the evidence could have been discovered within 120 days post-trial. We conclude that Defendant's delayed motion for a

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new trial was permissible as nothing occurred during trial to put the defense on notice that stippling may have been present on Defendant's right hand, and that a photograph existed to depict the stippling. In fact, the opposite is true.

The author of the above police reports, the same reports that the State argues should have alerted the defense to the presence of stippling, testified that the marks on Defendant's right hand were rubbed off with a paper towel. As flesh wounds can never simply be wiped off with a paper towel, the defense had no new evidence from trial that the Defendant had stippling (a flesh wound) on his right hand. In fact, after trial, the defense had even less evidence to point to the presence of stippling than it did before trial, as the author of the police reports specifically stated that the wound was rubbed off, eliminating any possibility that stippling was present. Furthermore, Detective Caprez testified that there were no photographs depicting Defendant's right hand.

It was not until 2002, when the photograph depicting Defendant's right hand was discovered and analyzed by experts that the defense became aware that Defendant had a flesh wound on his right hand. Accepting that the police reports did not alert the defense to the presence of stippling on Defendant's right hand prior to trial, and finding that nothing during trial, or until the photograph was discovered, could have alerted the defense to the presence of stippling, we find that Defendant's motion for a new trial, made more than the allowed 120 days after trial was permissible under Crim.R. 33.

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Accordingly, we overrule the State's assignment of error and affirm the decision of the Summit County Court of Common Pleas.

Judgment affirmed.

The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E).

The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.





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I would reverse the decision of the trial court granting a new trial to the Defendant as he has not proven that the evidence he discovered could not have been discovered prior to trial. As the majority mentioned, before a trial court may grant a defendant a new trial on the ground of newly discovered evidence, the defendant must show that the evidence: "(1) discloses a strong probability that it will change the result if a new trial is granted, (2) has been discovered since the trial, (3) is such as could not in the exercise of due diligence have been discovered before the trial, (4) is material to the issues, (5) is not merely cumulative to former evidence, and (6) does not merely impeach or contradict the former evidence." State v. King (1989), 63 Ohio App.3d 183, 191, citing State v. Petro (1947), 148 Ohio St. 505, 36 O.O. 165, 76 N.E.2d 370, at the syllabus.

In the case at hand, I believe that the `newly' discovered evidence that Defendant maintains entitles him to a new trial was present before trial and could have been discovered prior to trial. Detective Caprez, in his reports, clearly described what the defense should have realized was stippling on Defendant's right hand. Petro, supra, requires that the Defendant prove that the evidence of stippling "could not in the exercise of due diligence have been discovered before trial." Id. Had Defendant's trial counsel and experts exercised due diligence when they read the Caprez reports, they would have been alerted to the fact that

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stippling may have been present on Defendant's right hand and, at that point, they could have, and should have, conducted a detailed investigation. They did not do so. Nor has any valid reason as to why they did not conduct a pre-trial investigation based on the reports been advanced.

For the above reasons, I would reverse the decision of the lower court.

APPEARANCES: SHERRI BEVAN WALSH, Prosecuting Attorney and PHILIP D. BOGDANOFF, Assistant Prosecuting Attorney, Summit County Safety Building, 53 University Avenue, 6th Floor, Akron, Ohio 44308, for Appellant.

JOHN S. PYLE, Attorney at Law, 1140 Leader Building, 526 Superior Avenue, East, Cleveland, Ohio, 44114-1498, for Appellee.

Court of Appeals of Ohio, Ninth Judicial District