Record Courier
No new trial in 1990 Atwater murders Judge dismisses arguments of inconsistent witness statements, prosecutorial misconduct
April 26, 2007
By Marci Piltz
Record-Courier staff writer
A Portage County judge on Tuesday denied a motion seeking a new trial for convicted murderer Tyrone Noling.
Noling, 34, filed the motion in November 2006 along with another seeking a second post-conviction relief hearing. In those motions, Noling's attorneys argued that a new trial was warranted after a review of evidence in the case found inconsistent witness statements and grand jury testimony, questionable witness credibility, alternative suspect evidence and prosecutorial misconduct.
Portage County Common Pleas Judge John Enlow dismissed the motions in a ruling filed Tuesday. In that decision, Enlow wrote "many of these issues were addressed in the previous post-conviction relief or should have been addressed in the direct appeal."
In 1996, Noling was convicted of two counts each of aggravated murder and aggravated robbery, as well as one count of aggravated burglary. He was sentenced to death and has since been serving time in the Ohio State Penitentiary.
The charges stem from the April 1990 deaths of Bearnhardt and Cora Hartig at the couple's Atwater home. Both had been shot several times with a .25-caliber handgun, a weapon that investigators have never recovered.
Their bodies were discovered on the kitchen floor of their home by a neighbor's son on April 5, 1990. The man had entered the home after noticing a tractor left parked outside the home for several days, something he told investigators Bearnhardt Hartig would never do.
Prosecutors alleged the murders were the result of a botched robbery, during which Bearnhardt Hartig may have attempted to stop then 18-year-old Noling and his alleged accomplice, Gary St. Clair.
St. Clair pleaded guilty to the slayings in 1993 and was sentenced to 20 years to life in prison. He has since claimed his plea was a result of threats and coercion by investigators from the Portage County Prosecutor's Office.
A post-conviction relief petition filed in 1998 was denied with the court ruling an important witness recanting is not by itself grounds for a new trial and that claims by those witnesses that they were coerced and/or intimidated by investigators should be taken with "utmost suspicion." The court also ruled information was available during Noling's original trial regarding his alibi but was not used and should have been raised during Noling's direct appeal.
Attorneys Kelly Culshaw and Jennifer Prillo of the Ohio Public Defender's Office and attorney Jim Jenkins told Enlow at a January hearing that two other alleged accomplices, Joey Dalesandro and Butch Wolcott, have also since claimed they were coerced to confess and implicate Noling.
Other arguments alleged that Noling's original trial attorneys failed to present evidence to the jury that could have provided reasonable doubt whether Noling committed the crime and that other potential suspects were never investigated.
In Tuesday's ruling, Enlow said the arguments failed to meet the standard for granting a new trial based on newly discovered evidence. Enlow cited the standard as having to show the new evidence would do one of six things: Disclose a strong probability that it will change the result if a new trial is granted; has been discovered since the trial; is such as could not in the exercise of due diligence have been discovered before the trial; is material to the issues; is not merely cumulative to former evidence; and does not merely impeach or contradict the former evidence.
Enlow also wrote that the Ohio Revised Code states "a court may not entertain a second petition or successive petitions" for post-conviction relief unless one of two factors applies: That the petitioner was unavoidably prevented from discovery of the facts upon which they rely on to present the claim or that the petitioner show by "clear and convincing evidence" that but for error at trial no reasonable fact finder would have found the petitioner guilty of the offense or eligible for the death sentence.
Enlow wrote that after reviewing the arguments and attached evidence, he found "the new evidence presented does not meet the standards for granting a new trial or a successive post-conviction relief petition."
|
