State v. Tolliver, 2005-— (Franklin County Court)

To view complete transcript click here

APPEAL from the Franklin County Court of Common Pleas

March 8, 2005

Kevin A. Tolliver appeals murder conviciton, claiming Claire Schneider shot herself during Paxil withdrawal.  Appeal is denied.

{¶1} Defendant-appellant, Kevin A. Tolliver, appeals from the judgment of the Franklin County Court of Common Pleas denying his petition for post-conviction relief.

{¶2} The Franklin County Grand Jury indicted appellant on murder with a firearm specification, in violation of R.C. 2903.02 and 2941.145, respectively, and tampering with evidence, in violation of R.C. 2921.12. The charges stem from Claire Schneider’s death on December 29, 2001. No. 04AP-591 2

{¶3} On December 29, 2001, appellant talked to law enforcement about Schneider’s death, stating “[s]he didn’t mean it. * * * She was in the middle of a sentence when she accidentally shot herself. I feel it’s my fault, because she didn’t know the gun was loaded.”…

{¶5} Columbus Police ballistics expert Mark Hardy and Franklin County Deputy Coroner Dr. Keith Norton testified that Schneider was shot in the mouth from a gun held and fired outside her mouth. Dr. Norton did not determine the motive behind Schneider’s death, but did indicate that he has never examined a case that involved a person committing suicide by holding a gun outside the mouth and firing into the mouth.

{¶6} The state introduced into evidence a white shirt with bloodstains that Schneider’s family found in her apartment. The state asserted that appellant wore the shirt when he shot Schneider. Neither law enforcement nor appellant’s trial counsel tested the shirt for gunshot residue. Bloodstain expert Robert Young examined the shirt on the state’s behalf and testified that “the white shirt was in close proximity to Miss Schneider’s face at the instant she was shot.”  On cross-examination, Young indicated that “the white shirt could have been laying on the floor” during the shooting.

{¶8} Pharmacist Wendy Arnold and Dr. Stanley McCloy, Jr., testified on the state’s behalf. Dr. McCloy testified that he prescribed Paxil for Schneider after diagnosing her with depression. Arnold testified that Schneider filled her last Paxil prescription for 30 tablets on November 24, 2001. According to Arnold, four days would have passed between the day the prescription ran out and December 29, 2001, the day Schneider died. Appellant similarly told law enforcement that Schneider “had not taken her medication.”  McCloy stated that “[i]n less than a minority of cases,” a patient failing to take prescribed Paxil medication for a few days “could experience a bit of withdrawal.”

{¶10} Appellant’s trial counsel contended throughout the trial that Schneider accidentally shot herself. During closing argument, defense counsel emphasized that Schneider did not know that the firearm was loaded and that she shot herself during the middle of her sentence.

{¶11} After deliberations, the jury found appellant guilty of murder…

{¶13} Meanwhile, appellant filed before the trial court a petition for post-conviction relief and requested an evidentiary hearing on the matter. In seeking postconviction relief, appellant claimed that his incarceration is unlawful under the Eighth Amendment to the United States Constitution because of his “actual innocence.”  (Appellant’s brief, 1.) Appellant also asserted that his trial counsel’s performance constituted ineffective assistance because trial counsel failed to: (1) test for gunshot residue the coat that law enforcement found on Schneider after her death and the white
shirt that Schneider’s family found in the apartment, (2) elicit evidence from Schneider’s family regarding Schneider’s emotional state before her death, and (3) assert a defense that Schneider committed suicide due to her suffering “Paxil withdrawal syndrome.”

{¶44} In summary, the trial court did not abuse its discretion by denying appellant’s post-conviction petition without an evidentiary hearing. Accordingly, we overrule appellant’s first and second assignments of error and affirm the judgment of the Franklin County Court of Common Pleas.