[Cite as State v. Jalowiec, 2015-Ohio-5042.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF LORAIN ) 

STATE OF OHIO 

 Appellee 

 v. 

STANLEY E. JALOWIEC 

 Appellant 

C.A. No. 14CA010548 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF LORAIN, OHIO 

CASE No. 95CR046840 

DECISION AND JOURNAL ENTRY 

Dated: December 7, 2015 

 

MOORE, Judge. 

{¶1} Appellant, Stanley Jalowiec, appeals an order that denied his motion for a new 

trial. This Court affirms. 

I. 

{¶2} In 1996, a jury found Mr. Jalowiec guilty of aggravated murder in connection 

with the death Ronald Lally, and on the jury’s recommendation, the trial court sentenced him to 

death. This Court affirmed. State v. Jalowiec, 9th Dist. Lorain No. 96CA006445, 1998 WL 

178554 (Apr. 15, 1998). The Ohio Supreme Court affirmed as well. State v. Jalowiec, 91 Ohio 

St.3d 220 (2001), cert. denied, 534 U.S. 964 (2001). While his direct appeal was pending, Mr. 

Jalowiec petitioned the trial court for postconviction relief, followed by three amended petitions. 

The trial court treated his third amended petition as a successive petition and dismissed it. This 

Court affirmed. State v. Jalowiec, 9th Dist. Lorain Nos. 01CA007844, 01CA007847, 2002 WL 

358637 (Mar. 6, 2002), appeal not allowed, 96 Ohio St.3d 1439, 2002-Ohio-3344. 
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{¶3} Mr. Jalowiec also petitioned the federal district court for a writ of habeas corpus 

in 2003. During the course of discovery, previously undisclosed evidence came to light, and in 

2005, Mr. Jalowiec filed an amended petition. The amended petition alleged, in the twentieth 

claim for relief, that Mr. Jalowiec “was denied his rights to a fair trial, due process of law, and to 

be free from cruel and unusual punishment, as guaranteed by the Fifth, Sixth, Eighth, and 

Fourteenth Amendments to the United States Constitution, when the state withheld favorable and 

exculpatory * * * materials.” Jalowiec v. Bradshaw, N.D.Ohio No. 1:03 CV 0645, 2008 WL 

312655, *16 (Jan. 31, 2008). The district court determined that the allegations in Mr. Jalowiec’s 

twentieth ground for relief were procedurally defaulted because Ohio courts had enforced a state 

procedural bar with respect to one basis for relief and, with respect to the others, Mr. Jalowiec 

had failed to present them for adjudication in Ohio courts. Id. at *33. Nonetheless, the district 

court considered the merits of the procedurally defaulted claims “in an effort to promote judicial 

efficiency and preserve judicial resources.” Id. at *50. In so doing, the district court concluded 

that Mr. Jalowiec’s twentieth ground for relief was without merit in its entirety. Id. at *66-73. 

Mr. Jalowiec appealed to the U.S. Sixth Circuit Court of Appeals. 

{¶4} On May 28, 2008, Mr. Jalowiec also filed a pro se motion for leave to file a 

delayed motion for a new trial based on newly discovered evidence. The trial court granted 

leave, and Mr. Jalowiec filed that motion on June 4, 2008. The State responded. In the 

meantime, Mr. Jalowiec’s appeal moved forward in the Sixth Circuit. Oral argument was heard 

on June 9, 2010. The Sixth Circuit issued its final opinion in the case on November 23, 2011. In 

response to Mr. Jalowiec’s argument that his failure to exhaust should have been excused by the 

district court, the Sixth Circuit concluded that the nondisclosure of evidence resulted in good 

cause for the procedural default, but that the nondisclosure did not result in prejudice such that 
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Mr. Jalowiec was entitled to a stay while his motion for a new trial was litigated in state court. 

Jalowiec v. Bradshaw, 657 F.3d 293, 305 (6th Cir.2011). In so doing, the Sixth Circuit 

undertook a de novo review, considering each allegation in the twentieth claim for relief 

individually and collectively. Id. at 305-314. The Sixth Circuit affirmed the district court’s 

denial of the twentieth claim for relief, concluding that he had failed to show that “the 

undisclosed impeachment evidence is sufficiently ‘material’ to warrant habeas relief.” Id. at 314. 

{¶5} About one month after the Sixth Circuit issued that decision, Mr. Jalowiec moved 

the trial court for leave to file an amended motion for a new trial. The trial court granted leave, 

and Mr. Jalowiec filed an amended motion on June 28, 2012. The trial court conducted a hearing 

on the motion and considered the matter submitted upon the filing of posthearing briefs. The 

trial court denied Mr. Jalowiec’s motion for a new trial on January 29, 2014, and this appeal 

followed. 

II. 

{¶6} Because Mr. Jalowiec’s motion for a new trial hinged on the materiality of newly 

discovered evidence, we begin by setting forth the evidence that resulted in his conviction. 

{¶7} On January 19, 1994, the body of an unidentified man was found along a road 

inside a Cleveland cemetery. Police noted that the previous night had been one of the coldest 

recorded in Cleveland, yet the victim was found shirtless, his upper garments lying along the 

road in a snow bank. There were blood stains on the road with tire tracks running through them. 

According to the coroner, the victim had multiple abrasions to his face and split lips from blows 

to the mouth. He had received multiple blows to the head, and his neck bore scrapes that were 

“deep” and “impressive.” Another “broad area of parallel scrapes” were evident on his chest and 

abdomen. The coroner ruled that the man died as a result of three factors: a gunshot wound to 
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the head, which would not have been fatal on its own; multiple blows to the head; and exposure 

to extremely cold temperatures. About three weeks later, the deceased was identified as Ron 

Lally. 

{¶8} In 1993, Mr. Lally had agreed to purchase drugs from Danny Smith as a 

confidential informant for the Elyria Police Department. As a result of the purchase, Danny 

Smith and his father Raymond were charged with drug offenses. Danny was scheduled to go to 

trial on January 19, 1994. Officer John Homoki testified that in September 1993, he responded 

to a disturbance call initiated by Mr. Lally, who complained that “these guys” had threatened 

him. Officer Homoki recalled that Danny Smith said at the time, “That snitch will get his.” 

Officer Homoki also saw Mr. Jalowiec walking away from the disturbance as he arrived on 

scene. Mr. Lally’s fiancé, Sandra Williams, also recalled that Mr. Lally had been threatened by 

Danny Smith. 

{¶9} Witness Lynne Altpater testified that around the same time, Danny Smith asked 

her whether she could get him some poison because “he said he needed [it] to take care of 

somebody” who was going to testify against him. Terry Hopkins, a school acquaintance of 

Danny Smith, testified that he agreed to help Smith “[b]eat somebody up,” but that when Smith 

later approached him because he “wanted somebody killed,” he declined. Instead, he arranged 

for Smith to meet Carl Hartman. Hartman also testified, and he recalled that in the fall of 1993, 

Danny Smith asked him if he would take money in exchange for making sure that Mr. Lally did 

not testify. Hartman refused, but recalled that Smith said that “he had somebody that could do it 

for him[.]” He remembered that Smith mentioned someone named “Stan,” but did not use a last 

name. 
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{¶10} The night before Danny and Raymond Smith were scheduled to go to trial on the 

drug charges, they went drinking with some of their acquaintances. Terry Hopkins testified that 

he was drinking with Danny Smith and Danny’s girlfriend Tammy, his own girlfriend, and his 

sister, Sharon Hopkins. According to his testimony, the group went to a diner when the bars 

closed for the night, and he returned to his sister’s apartment not long after that without Danny 

Smith. 

{¶11} Sharon Hopkins also testified, but she recalled that she stayed behind at the diner 

when her brother left with his girlfriend. Sharon testified that Raymond Smith, Danny Smith, 

and Danny’s brother Michael were all present. She also recalled that Mr. Jalowiec was present 

“[h]ere and there” during the evening with Danny, but that by the time the bars closed, Mr. 

Jalowiec was gone. She stated that she left with Danny Smith, who was her ride home. 

Raymond and Michael were also in the car, but according to her testimony, Danny dropped them 

off on Middle Avenue. Danny then pulled into a parking lot in the woods and waited until a 

convertible drove past. Sharon recalled that the convertible drove back and forth a few times 

before Danny followed it out of town and signaled for it to pull over. According to Sharon, 

Danny “ducked down” in the car and told her to get out and ask the driver if they had picked up 

his brother Michael. Sharon complied. She identified the driver as Mr. Jalowiec and recalled 

that there were other people in the car that she could not identify. Sharon got back in the car, and 

Danny Smith drove her home. 

{¶12} Joann Fike (also known by the name “Corinne Fike”) testified that she knew 

Danny and Raymond Smith as a result of their involvement with drugs. Fike owned a 1992 

Chrysler LeBaron convertible, which she had loaned to Danny on occasion in exchange for drugs 

that he provided. Fike also owned a dog, whose hair was collected for analysis by the Elyria 
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police department in connection with Mr. Lally’s murder. Fike’s nephew, Brian Howington, 

testified that he used Fike’s convertible on the night in question. Howington recalled that he was 

drinking with Mr. Jalowiec that evening before the two picked Mr. Lally up and went back to 

Fike’s house. Howington testified that Mr. Jalowiec received a page, then asked to borrow 

Fike’s convertible and left with Mr. Lally around 1:00. He returned the car around 5:00 a.m. 

with Raymond Smith, and the car was “frozen, covered with ice” as though it had been washed. 

{¶13} Michael Smith, who is the son of Raymond Smith and brother of Danny Smith, 

implicated his father and Mr. Jalowiec directly in the murder of Mr. Lally and, indirectly, 

implicated Danny in the scheme that led up to Mr. Lally’s death. Michael testified that he was 

out on the night of January 18, 1994, and met up with his father and brother at a diner. He left 

the diner with Raymond, Danny, and Danny’s girlfriend, Tammy, in Danny’s car. Michael 

recalled that Danny dropped him and Raymond off, and they waited until Mr. Jalowiec picked 

them up in a Chrysler LeBaron. Mr. Lally was a passenger in the car as well. Michael recalled 

that as they drove, Raymond threatened Mr. Lally because he had set Danny up, but said that 

“We are going to give you some money, get you a bus ticket, you are going to get out of town.” 

Michael testified that instead, Raymond gave Mr. Jalowiec instructions to drive into Woodland 

Cemetery, where he and Mr. Lally got out of the car. According to Michael, Raymond pointed a 

gun at Mr. Lally’s face and said, “You will never snitch on nobody again[.]” Michael heard a 

gunshot and heard Mr. Lally exclaim, “You shot me in my head, you shot me in my head” before 

pleading for his life. 

{¶14} At that point, Michael recalled that Raymond told Mr. Jalowiec to get out of the 

car and a scuffle ensued. Michael testified that at one point, Mr. Jalowiec opened the door and 

retrieved a knife. Silence followed, then according to Michael, he heard the trunk open and 
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heard Mr. Jalowiec say, “He ain’t going to fit, he ain’t going to fit, he is too stiff[.]” Michael 

recalled that Raymond and Mr. Jalowiec got back into the car and that Mr. Jalowiec backed the 

car into something three times. Mr. Lally did not get back into the car. As the men drove away, 

Michael recalled that Raymond asked why he had not gotten out of the car to help, then 

dismantled his gun and threw it from the window piece by piece. 

{¶15} Terry Hopkins testified that after his sister Sharon got home early on the morning 

of January 19th, he returned to Danny Smith’s apartment, where he had been staying. According 

to Hopkins’ recollection, Danny was “nervous, real nervous and said he was feeling sick to his 

stomach. * * * He said they had done it, they did it.” Hopkins left, then returned the next day to 

get his belongings. He recalled that Danny Smith, Raymond Smith, Michael Smith, and Mr. 

Jalowiec were all at the apartment talking “[a]bout what they had done to this guy.” Hopkins 

testified that he heard Mr. Jalowiec say that “[t]hey stomped him and ran him over with a car,” 

and the group talked about shooting and cutting the victim. He recalled that Danny Smith 

wanted the victim killed because he had worn a wire during a drug deal. According to Hopkins, 

Michael Smith seemed nervous during the conversation. 

{¶16} During the course of their investigation, police examined the Chrysler LeBaron 

owned by Joann Fike for evidence. They found human blood on the trunk liner with a DNA 

profile that was consistent with Ron Lally, but inconsistent with Raymond Smith, Danny Smith, 

and Mr. Jalowiec. Police also found dog hairs in the trunk that matched hairs found on Mr. 

Lally’s clothing after his death. 

{¶17} Detective Alan Leiby, who led the investigation into Mr. Lally’s death, also 

testified at trial. During his testimony, Detective Leiby acknowledged that every witness in the 

State’s case had refused to cooperate at the beginning of his investigation. He also testified that 
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in exchange for cooperating in the investigation, witnesses Carl Hartman and Terry Hartman 

received favorable consideration in criminal cases that were pending against them. He 

acknowledged that he told Brian Howington, a drug user at the time, that he would not be 

charged with a drug offense as a result of anything he said during his interview. Detective Leiby 

testified that the fact police did not charge Michael Smith with a crime, however, was unrelated 

to his cooperation. 

{¶18} Mr. Jalowiec’s attorneys mounted a vigorous defense at trial, honing in on three 

specific aspects of the State’s case: numerous prior inconsistent statements by witnesses, the 

favorable treatment provided to some witnesses in the context of their own criminal cases, and 

the fact that many witnesses were under the influence of drugs and alcohol on the night of the 

murder. 

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED IN DENYING JALOWIEC A NEW TRIAL 

AFTER A PARTIAL EVIDENTIARY HEARING[.] 

{¶19} Mr. Jalowiec’s first assignment of error argues that the trial court erred by failing 

to conduct a full hearing on his motion for a new trial and by issuing a decision that did not 

explain the basis for denying his motion in detail. We disagree. 

{¶20} Crim.R. 33(A)(6) provides that a new trial may be granted “[w]hen new evidence 

material to the defense is discovered which the defendant could not with reasonable diligence 

have discovered and produced at the trial.” By its terms, Crim.R. 33 does not require a hearing 

on a motion for a new trial, and this Court has consistently held that the decision to conduct a 

hearing is one that is entrusted to the discretion of the trial court. State v. Smith, 30 Ohio App.3d 

138, 139 (9th Dist.1986). When this Court reviews a decision for an abuse of discretion, we 

consider whether the trial court’s decision is unreasonable, arbitrary, or unconscionable. State v. 
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Penix, 9th Dist. Summit No. 23699, 2008-Ohio-1051, ¶ 34, citing Blakemore v. Blakemore, 5 

Ohio St.3d 217, 219 (1983). 

{¶21} In this case, the trial court conducted a hearing, but Mr. Jalowiec objects to the 

scope of the hearing that the trial court conducted. Specifically, the trial court held its 

proceedings in two stages. In the first, the court heard arguments from counsel about the 

evidence that Mr. Jalowiec identified in his motion for a new trial, focusing specifically on 

determining which items of evidence had been previously considered during the federal habeas 

proceedings. In the second stage, the trial court heard evidence from the witnesses that had been 

so identified. After the hearing, the trial court permitted the parties to file closing briefs on the 

merits of the case. Given the procedural posture of this case and the fact that Mr. Jalowiec’s 

motion for a new trial acknowledged that much of the newly discovered evidence upon which he 

relied had been previously analyzed by the federal courts in connection with his habeas petition, 

we cannot conclude that the trial court abused its discretion by structuring the hearings in this 

way. 

{¶22} Mr. Jalowiec has also argued that the trial court’s written decision that denied his 

motion for a new trial is insufficient because it did not explain its ruling in adequate detail. It is 

well-settled, however, that a trial court is under no duty to issue a written decision that contains 

findings of fact and conclusions of law when it rules on a motion under Crim.R. 33. State ex rel. 

Collins v. Pokorny, 86 Ohio St.3d 70 (1999). 

{¶23} The trial court did not abuse its discretion in its conduct of the hearing in this 

matter, nor was it obligated to include findings of fact and conclusions of law in its order 

denying Mr. Jalowiec’s motion for a new trial. Mr. Jalowiec’s first assignment of error is 

overruled. 
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ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED IN DENYING JALOWIEC A NEW TRIAL 

WHERE HE PRESENTED SUBSTANTIAL NEW EVIDENCE 

DEMONSTRATING THAT POLICE AND PROSECUTORS VIOLATED HIS 

RIGHTS UNDER BRADY V. MARYLAND. 

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED IN DENYING JALOWIEC A NEW TRIAL 

WHERE HE PRESENTED MATERIAL NEW EVIDENCE OF HIS 

INNOCENCE THAT WOULD CHANGE THE RESULT ON RETRIAL[.] 

ASSIGNMENT OF ERROR IV 

THE TRIAL COURT VIOLATED JALOWIEC’S EIGHTH AND 

FOURT[E]ENTH AMENDMENT RIGHTS BECAUSE HE FACES A 

SENTENCE OF DEATH FOR A CRIME OF WHICH HE IS ACTUALLY 

INNOCENT.

{¶24} Mr. Jalowiec’s second, third, and fourth assignments of error argue that the trial 

court erred by denying his motion for a new trial by concluding that many of his arguments were 

barred by res judicata and by concluding that he had not established prejudice sufficient to 

warrant granting a new trial. With respect to the latter argument, Mr. Jalowiec alleges that some 

evidence is newly discovered because it was not disclosed by the State before trial. With respect 

to all of the evidence, whether allegedly undisclosed or otherwise newly discovered, Mr. 

Jalowiec argues that it demonstrates that he is actually innocent. 

{¶25} A threshold issue concerns the trial court’s application of res judicata to evidence 

previously considered by the federal courts in connection with Mr. Jalowiec’s petition for habeas 

corpus. Mr. Jalowiec has argued that the trial court erred in doing so because “[t]he evidence 

considered in federal court was strikingly different from what Jalowiec was [sic] presented in his 

[motion for a new trial].” We disagree. 

{¶26} Mr. Jalowiec’s motion for a new trial concedes that some evidence upon which he 

relies was previously considered by the federal courts. Among this material, Mr. Jalowiec 
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pointed to evidence that, according to him, implicates Danny Smith in the murder and evidence 

that demonstrates that the State exerted improper influence over witnesses. With respect to 

Danny Smith’s involvement, Mr. Jalowiec points to a witness statement by a woman named 

Melissa Arroyo in 1995, in which she told police that Danny Smith admitted participating in a 

murder; a letter written by a Robert Quillen, who claimed that Danny Smith admitted that he 

killed “the snitch”; Danny Smith’s own opinion, expressed to police officers, that he did not 

think Mr. Jalowiec was capable of murder; a letter from Raymond Smith to Danny Smith from 

the year 2000 (after Raymond was convicted and Danny was acquitted) that urged Danny to tell 

the truth about his involvement; and an allegation that an informant placed in Mr. Jalowiec’s 

prison cell with a recorder failed to come away with any inculpatory statements. 

{¶27} According to Mr. Jalowiec, other evidence implies that witnesses were influenced 

to testify against Mr. Jalowiec because they received favorable treatment in their own criminal 

cases. This included Lynne Altpater, who claimed that her husband received favorable treatment 

in a drug case; Terry Hopkins, who received shock probation; Brian Howington, who was 

granted immunity in connection with his testimony and who, according to Mr. Jalowiec, was 

influenced by his aunt with respect to the content of his testimony; Joann Fike, whose testimony 

Mr. Jalowiec surmises, despite the lack of supporting evidence, to have been the result of 

improper influence by Detective Leiby; and Michael Smith, whose testimony Mr. Jalowiec 

guesses may have been the result of favorable treatment. 

{¶28} In the course of determining whether Mr. Jalowiec’s procedural default should be 

excused and whether federal appellate proceedings should be stayed, the federal courts 

considered all of this evidence and concluded that the Brady standard had not been met. 
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Jalowiec, 2008 WL 312655, at *66-73; Jalowiec, 657 F.3d at 302-314. More specifically, the 

Sixth Circuit Court of Appeals concluded: 

In reaching this conclusion, we hold that Jalowiec has not shown such prejudice 

as to render the unexhausted part of his Brady claim sufficiently meritorious to 

warrant a stay pending completion of his state court exhaustion efforts. Further, 

on de novo review of the merits of the claim, we hold that Jalowiec has not shown 

that the undisclosed impeachment evidence is sufficiently “material” to warrant 

habeas relief. 

Id. at 313-314. 

{¶29} Res judicata encompasses both claim preclusion and issue preclusion. State ex 

rel. Nickoli v. Erie MetroParks, 124 Ohio St.3d 449, 2010-Ohio-606, ¶ 21. With respect to issue 

preclusion, application of res judicata “serves to prevent relitigation of any fact or point that was 

determined by a court of competent jurisdiction in a previous action between the same parties[.]” 

O’Nesti v. DeBartolo Realty Corp., 113 Ohio St.3d 59, 2007-Ohio-1102, ¶ 7, citing Ft. Frye 

Teachers Assn., OEA/NEA v. State Emp. Relations Bd., 81 Ohio St.3d 392, 395 (1998). Two 

issues are the same for purposes of issue preclusion when the same evidence will sustain both. 

Ft. Frye at 396, citing Norwood v. McDonald, 142 Ohio St. 299 (1943), paragraph four of the 

syllabus. 

{¶30} Mr. Jalowiec moved for a new trial under Crim.R. 33(A)(6), which requires a 

defendant to demonstrate that new 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. Petro, 148 Ohio St. 505 (1947), syllabus. Crim.R. 33 does not contemplate a motion for 

a new trial on grounds of evidence demonstrating “actual innocence” apart from the grounds set 
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forth in Crim.R. 33(A)(6), so a motion based on the premise must demonstrate the strong 

probability that newly discovered evidence would have led to a verdict of not guilty. 

{¶31} A defendant who argues that exculpatory evidence was wrongfully withheld by 

the State in violation of the Due Process Clause, on the other hand, must demonstrate the 

suppression of favorable evidence that is material to guilt or punishment. Brady v. Maryland, 

373 U.S. 83, 87 (1963). “There are three components of a true Brady violation: The evidence at 

issue must be favorable to the accused, either because it is exculpatory, or because it is 

impeaching; that evidence must have been suppressed by the State, either willfully or 

inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-282 

(1999). Undisclosed evidence is “material” when “there is a reasonable probability that, had the 

evidence been disclosed to the defense, the result of the proceeding would have been different.” 

U.S. v. Bagley, 473 U.S. 667, 682 (1976). 

{¶32} When a due process violation is alleged in within the framework of Crim.R. 

33(A)(6), the defendant maintains that evidence is “newly discovered” by virtue of it having 

been suppressed before trial. Because the standard for materiality under Brady and its progeny is 

lower than that required by Crim.R. 33(A)(6) and Petro, that analysis is dispositive. See State v. 

Baker, 12th Dist. Clinton No. CA2000-08-018, 2001 WL 1218888, *6 (Oct. 15, 2001). 

{¶33} Thus, the critical issue in both the federal habeas proceedings and the proceedings 

related to Mr. Jalowiec’s motion for a new trial is whether the new evidence at issue would have 

changed the result of Mr. Jalowiec’s trial. With respect to the evidence presented during the 

habeas proceedings, the federal courts considered the issue of materiality under Brady and 

concluded that the evidence would not have changed the outcome. As noted above, this 

threshold of materiality is lower than that required by Crim.R. 33(A)(6). Consequently, it 
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presents the same issue for purposes of issue preclusion, and res judicata prohibits Mr. Jalowiec 

from arguing the motion based on the same evidence in this case. 

{¶34} Nonetheless, Mr. Jalowiec also argues that his motion is based on evidence that 

was discovered since the federal habeas proceedings and that based on that evidence, alone and 

in conjunction with the previously discovered evidence, he is entitled to a new trial. We 

disagree. 

{¶35} Some of this allegedly newly discovered evidence is essentially a restatement of 

the evidence that the federal courts considered and rejected. The affidavit of Jeff Buteau 

reiterated the suppositions from his earlier affidavit that Joann Fike, received assistance from 

Detective Leiby and coached Brian Howington regarding his statement to police. Danny Smith’s 

affidavit repeated his speculation that Mr. Jalowiec would not have killed someone and the 

allegation that his brother, Michael Smith, was given immunity and financial assistance from the 

State in exchange for cooperating with the prosecution. The affidavits of Ditanvia Deiger and 

Gerald Mielcarek, who had no connection to the events at issue, reiterated the same allegations. 

Like Danny Smith, Richard Altpater speculated that Mr. Jalowiec could not kill someone. A 

new affidavit from Melissa Arroyo, whose statement to police was considered during the habeas 

proceedings, appears at first glance to offer new evidence, but upon closer examination of the 

record, it fails to do so. When Ms. Arroyo testified at the hearing on Mr. Jalowiec’s motion for a 

new trial, she admitted that she did not read her affidavit before signing it and recanted much of 

it. The testimony that she provided contradicted her affidavit and was consistent with the 

statement already considered by the federal courts. 
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{¶36} All of this evidence is redundant and bears on the same issues resolved by the 

federal courts. As such, res judicata applies in this proceeding, and the trial court did not err in 

reaching this conclusion. 

{¶37} With respect to the rest of the evidence that Mr. Jalowiec has advanced in support 

of his motion for a new trial – and to all of the evidence collectively – we also conclude that the 

trial court did not err in denying the motion. “The decision whether to grant a new trial on 

grounds of newly discovered evidence falls within the sound discretion of the trial court.” State 

v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, ¶85, citing State v. Hawkins, 66 Ohio St.3d 339, 

350 (1993). When a Brady violation is framed in terms of Crim.R. 33(A)(6), an appellate court 

still reviews the determination for an abuse of discretion. See generally LeMar at ¶ 85. 

{¶38} Crim.R. 33(A)(6) permits a new trial to be ordered when “new evidence material 

to the defense is discovered which the defendant could not with reasonable diligence have 

discovered and produced at the trial.” In order to establish that new evidence warrants a new trial 

under Crim.R. 33(A)(6), a movant must establish that the new 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. 

Petro, 148 Ohio St. 505 at syllabus. Evidence that impeaches or contradicts the evidence at trial 

is not excluded from consideration per se, but the character of that evidence is relevant to 

whether a different result is a strong probability. State v. Cureton, 9th Dist. Medina Nos. 

03CA0009-M, 03CA0010-M, 2003-Ohio-6010, ¶ 19, quoting Dayton v. Martin, 43 Ohio App.3d 

87 (2d. Dist.1987), syllabus. The nature of the evidence is a significant consideration: 

In singling out impeaching or contradicting evidence, Petro recognized that the 

nature of such evidence requires that a trial court exercise circumspection in 
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determining whether newly discovered evidence of that character would create a 

strong probability of a different result, because such evidence quite often will not 

be likely to change the outcome. 

Martin at 90. 

{¶39} In this case, the trial court did not abuse its discretion by denying Mr. Jalowiec’s 

motion for a new trial because some of the remaining evidence is not “newly discovered” and the 

rest does not demonstrate a strong probability of a different result at trial. This remaining 

evidence can be grouped into four categories: evidence that attempts to impeach the credibility of 

trial witnesses, expert testimony that attempts to cast doubt on the State’s case, general criticism 

of the Elyria Police Department, and evidence that purports to bear on Mr. Jalowiec’s innocence. 

{¶40} Exhibits 57-60 contain affidavits of Mr. Jalowiec’s immediate family members 

that date to 1998. These affidavits claim that family members were with Mr. Jalowiec on the 

night of Ron Lally’s murder. Exhibit 1 is the affidavit of Mr. Jalowiec himself, in which he 

claims that he was a confidential informant for the Elyria Police Department at the time of the 

murder. Mr. Jalowiec could have discovered this evidence with reasonable diligence and, 

accordingly, it cannot support a motion for a new trial. 

{¶41} The affidavits of Tammy Lasinis, fka Tammy Castro, Danny Smith, and Richard 

Altpater attempt to impeach the credibility of trial witnesses. Ms. Lasinis was Danny Smith’s 

girlfriend at the time of the murder. In her affidavit, she maintains that she was working the 

night that Mr. Lally died; that Danny Smith borrowed Joann Fike’s car in exchange for drugs; 

and that she has no idea who killed Ron Lally. To the extent that Ms. Lasinis claims that she was 

working the night of the murder, her affidavit contradicts the trial testimony of Terry Hopkins 

and Sharon Hopkins, both of whom claimed that she was among the group that went drinking 

that evening. Mr. Jalowiec’s motion for a new trial articulates the significance of her affidavit as 
17 

 

follows: “If these witnesses were wrong about [her] being in Elyria that night, they can be no less 

wrong about seeing Jalowiec in the LeBaron.” This is purely speculative. Ms. Lasinis, Danny 

Smith, and Richard Altpater each maintain that on occasion, Danny exchanged drugs with Joann 

Fike in exchange for the use of her car. Ms. Fike herself testified to this fact at trial, however, 

and it falls far short of establishing that anyone other than Mr. Jalowiec borrowed the car on the 

night of the murder. 

{¶42} Like the statement of Robert Quillen that was considered by the federal courts 

during the habeas proceedings, the affidavit of inmate Wilbur Jeffrey Lewis maintains that while 

Mr. Lewis was incarcerated with Raymond and Danny Smith, they confessed to the murder of 

Ron Lally, but never implicated Mr. Jalowiec, who maintained his innocence. That Mr. Jalowiec 

maintains his innocence is unsurprising, and that Danny and Raymond implicated themselves is 

equally so. The State’s theory of the case, after all, was that Danny planned the murder while 

Raymond and Mr. Jalowiec carried it out. In other words, Mr. Quillen’s statements are not 

material to Mr. Jalowiec’s defense. 

{¶43} The final items at issue are three affidavits from people with no connection to the 

case. The first is the affidavit of Hetzel See, a former Elyria police officer. Mr. See’s affidavit 

makes sweeping allegations against the police and the then-prosecutor, but he acknowledged at 

the hearing that he had no involvement in the investigation of Mr. Lally’s murder. At best, Mr. 

See’s affidavit is speculative. It has virtually no evidentiary value in the context of Crim.R. 

33(A)(6). 

{¶44} The second and third exhibits contain reports authored by experts retained by Mr. 

Jalowiec’s defense. Gary A. Rini, whose report is Exhibit 3 in support of Mr. Jalowiec’s motion 

for a new trial, opined that it would be difficult for four adult males to ride in Joann Fike’s 1994 
18 

 

Chrysler LeBaron; that Mr. Lally died at the scene where the body was later found; and that there 

was no forensic evidence of “crushing wounds” caused by a vehicle running over Mr. Lally’s 

body. In an affidavit marked as Exhibit 53, Dr. Leroy Riddick opined that Mr. Lally was beaten 

before being shot, that he could not have said, “You shot me in the head” after being shot, and 

that the coroner miscalculated the time of Mr. Lally’s death. Dr. Riddick agreed that Mr. Lally 

had been beaten and that his injuries were consistent with being struck by an automobile. These 

exhibits are offered in an attempt to contradict the testimony of trial witnesses Michael Smith, 

who testified about the events that he heard from the LeBaron on the night of the murder, and Dr. 

Heather Neilson Raaf, who performed the autopsy of Mr. Lally’s body. The inconsistencies 

raised by these experts, however, were apparent from the trial court proceedings and were the 

subject of cross-examination by Mr. Jalowiec’s attorneys at trial. 

{¶45} The new evidence to which Mr. Jalowiec points consists of speculation and 

alleged contradictions that do not create a strong possibility of a different outcome at trial. This 

is the case when the evidence is considered individually and collectively and, indeed, when it is 

considered in the context even of the evidence to which res judicata applies in these proceedings. 

Counsels’ zeal for their client is admirable. But the evidence in the record does not “destroy[]” 

the testimony of the State’s key witnesses or “make[] clear that on retrial, no reasonable juror 

would conclude that Jalowiec had any role in Lally’s death.” To the contrary, the evidence is 

consistent with the State’s theory of the case: Danny Smith conspired with Raymond Smith to 

murder Mr. Lally, but left the murder itself to Raymond and Mr. Jalowiec. 

{¶46} The trial court did not abuse its discretion in denying Mr. Jalowiec’s motion for a 

new trial. His second, third, and fourth assignments of error are overruled. 

ASSIGNMENT OF ERROR V
19 

 

THE TRIAL COURT ERRED IN DENYING JALOWIEC A NEW TRIAL 

WHERE HE PRESENTED SUBSTANTIAL NEW EVIDENCE THAT THE 

STATE VIOLATED HIS CONSTITUTIONAL RIGHTS UNDER ARIZONA V. 

YOUNGBLOOD[.] 

{¶47} Mr. Jalowiec’s fifth assignment of error is that the State violated his right to due 

process by destroying exculpatory evidence. Specifically, Mr. Jalowiec maintains that there is 

“substantial new evidence” that Detective Leiby destroyed tape recordings of interviews in bad 

faith. We disagree. 

{¶48} Crim.R. 33(A)(2) provides that a new trial may be granted because of misconduct 

by the prosecutor or a witness for the state that materially affects a defendant’s substantial rights. 

This inquiry consists of two steps. State v. Heru, 9th Dist. Summit No. 24756, 2010-Ohio-635, 

¶2, quoting State v. Herb, 167 Ohio App.3d 333, 2006-Ohio-2412, ¶ 6 (9th Dist.). The first 

determination is whether misconduct actually occurred, and the second is whether that 

misconduct materially prejudiced the defendant’s substantial rights. Heru at ¶2, quoting Herb at 

¶ 6. With respect to the existence of misconduct, the United States Supreme Court has 

recognized that whether or not a defendant makes a specific request for disclosure, the 

suppression of exculpatory evidence that is material to guilt or punishment violates due process 

without respect to whether the state acted in bad faith. Brady, 373 U.S. at 87. When the state 

fails to preserve evidence that is merely “potentially useful,” a defendant must demonstrate that 

the state acted in bad faith. Arizona v. Youngblood, 488 U.S. 51, 58 (1988). 

{¶49} As a threshold matter, however, a defendant cannot establish a due process 

violation by speculating about the existence, content, and disposition of evidence. See United 

States v. Jobson, 102 F.3d 214, 218-219 (6th Cir.1996); Gipson v. Sheldon, N.D.Ohio No. 3:13-

CV-1997, 2015 WL 1980244, *9; United States v. Lusenhop, S.D.Ohio No. 1:14-CR-122, 2015 

WL 1487126, *5 (Apr. 1, 2015); Phelps v. Richard, S.D.Ohio No. 1:12-CV-896, 2014 WL 
20 

 

1872115, *10-11 (May 8, 2014). Compare United States v. Williams-Davis, 90 F.3d 490, 514 

(D.C.Cir.1996) (refusing to infer the existence of Brady material based on speculation). This is 

precisely what Mr. Jalowiec has attempted to do. Mr. Jalowiec speculates that because some 

witness interviews were tape recorded, all were tape recorded; infers that if all were recorded, 

some must have been destroyed; and surmises that if some were destroyed, they must have been 

potentially useful. This speculation does not establish misconduct on the part of the State or its 

witnesses, and it is therefore not sufficient to entitle Mr. Jalowiec to a new trial under Crim.R. 

33(A)(2). 

{¶50} Mr. Jalowiec’s fifth assignment of error is overruled. 

ASSIGNMENT OF ERROR VI

THE TRIAL COURT ERRED IN DENYING A NEW TRIAL WHERE 

[JALOWIEC] HAS PRESENTED THE COURT WITH SUBSTANTIAL NEW 

EVIDENCE OF INEFFECTIVE ASSISTANCE OF COUNSEL UNDER 

STRICKLAND AND MARTINEZ[.] 

{¶51} Mr. Jalowiec’s final assignment of error raises two ineffective assistance 

arguments. The first is that if this Court determines his claims have no merit because trial 

counsel could have discovered the evidence at issue, trial counsel was ineffective. This Court 

has determined that his motion for a new trial was properly denied for reasons other than the 

performance of trial counsel, so this aspect of Mr. Jalowiec’s sixth assignment of error is moot. 

Mr. Jalowiec’s second argument is that he should be granted a new trial because he received 

ineffective assistance during the habeas proceedings. This argument fails for two fundamental 

reasons. The Sixth Amendment right to counsel extends only as far as direct appeals as of right 

in state courts. See generally Halbert v. Michigan, 545 U.S. 605 (2005). The standards for 

effective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668 (1984) are 

grounded in the guarantees of the Sixth Amendment. Id. at 684-686. These standards do not 
21 

 

apply to Mr. Jalowiec’s federal habeas proceedings. Even if they did, however, a direct appeal 

from a state court’s denial of a motion for a new trial would not be the proper judicial forum to 

consider these arguments. 

{¶52} Mr. Jalowiec’s sixth assignment of error is overruled. 

III. 

{¶53} Mr. Jalowiec’s assignments of error are overruled. The judgment of the Lorain 

County Court of Common Pleas is affirmed. 

Judgment affirmed. 

 

 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 Lorain, 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(C). 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. 
22 

 

 Costs taxed to Appellant. 

 

 CARLA MOORE 

 FOR THE COURT 

HENSAL, P. J. 

CARR, J. 

CONCUR. 

APPEARANCES: 

MICHELE L. BERRY and TARA THOMPSON, Attorneys at Law, for Appellant. 

DENNIS P. WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting 

Attorney, for Appellee.