On the night of September 4, 2006, The Wanglers, according to Mark, were asleep in their residence. Kathy slept in a bedroom located on the second floor, while Mark slept in the master bedroom located on the first floor. At 5:18 a.m., the Allen County Sheriff’s Office received a frantic 911 call from Mark exclaiming that the carbon monoxide alarm in his residence was sounding and that Kathy, a diagnosed epileptic, was having a seizure. During the 911 call, but prior to the arrival of emergency services, Mark informed the dispatcher that he had opened the windows in Kathy’s bedroom and began performing CPR as she was now not breathing and had no pulse.
Kathy was pronounced dead ion the emergency room and found to have a very high level of CO in her blood. Mark also had significant levels. The medical examiner however found that Kathy had been dead 1-2 hours prior to arriving in the ER. This left the claim of Mark, an anesthesiologist, that his wife was having a seizure when he found her, an impossibility. Though his blood level of CO can easily cause confusion. Tests by the gas company that morning on the water heater and furnace found no leak of CO. Investigators began theorizing that exhaust from the car in the garage was the source of the CO and that the poisoning of Kathy was intentional. They discovered evidence of a failed marriage and when lab results came back consistent with care exhaust having entered the house, Wangler was indicted and arrested for murder. Wangler was convicted on March 16, 2011, of the aggravated murder of his wife.
On appeal, Wangler argued that the trial court erred in denying his motions to suppress evidence obtained from the Wangler home in two search warrants; that the trial court erred in refusing to exclude the testing performed by the Wisconsin State Laboratory of Hygiene (“the Lab”) and the testimony of the Lab’s employees; that the trial court erred in excluding testimony of his expert witness, Frederick Teeters; and, that he was denied a fair trial as a result of discovery violations that denied him access to material evidence. Based on these claims of error, Wangler sought a new trial. Let’s look at each claim and the findings of the court.
Refusal to Suppress Evidence
Wangler argued that the two search warrants issued for his home were flawed, each in its own ways that included false information, stale information, a lack of probable cause and a failure to describe with particularity the items to be seized. He also argued that law enforcement exceeded the scope of the warrants and the trial court erred in applying the “good faith exception” to the items seized.
The prosecution argued that Wangler waived his right to an appeal concerning staleness, particularity of items seized, the inclusion of knowingly false information, and the scope of the search being exceeded when he failed to raise an objection to these at trial. The court denied Wangler’s challenges here with the exception of the wrongful seizure of 2 handwritten journals, which the court found “were improperly seized under the April search warrant, and therefore erroneously admitted during
trial.” When an error is found by the court they must then decide whether or not it harmed the appellant in such a way as to affect the outcome of the trial. Despite the fact that the handwritten journals contained entires which could easily be interpreted as indications of guilt, the court found no prejudice to the appellant from their inclusion at trial. This is because they did not contain OVERWHELMING evidence of guilt. From the decision:
Finally, having determined that the Journals were improperly seized, and consequently erroneously admitted at trial, we must determine whether the error was harmless or prejudicial.12 “Error in the admission of evidence is harmless if there is no reasonable possibility that the evidence may have contributed to the accused’s conviction. In order to hold the error harmless, the court must be able to declare a belief that the error was harmless beyond a reasonable doubt.” State v. Bayless, 48 Ohio St.2d 73 (1978), paragraph seven of the syllabus, vacated in part on other grounds, 438 U.S. 911, 98 S.Ct. 3135 (1978). “[C]ases where imposition of harmless error is appropriate must involve either overwhelming evidence of guilt or some other indicia that the error did not contribute to the conviction.” State v. Rahman, 23 Ohio St.3d 146, 151 (1986), quoting State v. Ferguson, 5 Ohio St.3d 160, 166 (1983). When considering whether error is harmless, the reviewing court’s judgment should be based on its own reading of the record and on what it determines is the probable impact the evidence had on an average jury. State v. Kidder, 32 Ohio St.3d 279, 284 (1987), citing Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726 (1969). For the following reasons, we conclude that the admission of the Journals was harmless beyond a reasonable doubt.
The court went on to point out that the information in the journal regarding difficulties in the Wangler marriage was cumulative since the court “already heard testimony from several witnesses concerning the ruinous state of the marriage.” “While the State selected entries that captured the ruinous state of Mark and Kathy’s marriage, many other entries revealed that Mark remained hopeful about his marriage and made great efforts to improve his marriage. The existence of these favorable entries was brought to light during Sergeant Breitigan’s cross-examination”, the court said.
Refusal to Suppress Lab Tests and Testimony
Wangler contended that the tests performed by the Lab were scientifically unreliable, and therefore inadmissible as well as expert testimony about them. Ohio Evid.R. 702, (which governs the admissibility of expert testimony) provides in relevant part:
A witness may testify as an expert if all of the following apply:
(C) The witness’ testimony is based on reliable scientific, technical, or other specialized information. To the extent that the testimony reports the result of a procedure, test, or experiment, the testimony is reliable only if all of the following apply: (1) The theory upon which the procedure, test, or experiment is based is objectively verifiable or is validly derived from widely accepted knowledge, facts, or principles; (2) The design of the procedure, test, or experiment reliably implements the theory; (3) The particular procedure, test, or experiment was conducted in a way that will yield an accurate result.
The trial court held a “Daubert” hearing, which is a special hearing to determine the admissibility of such lab testing and expert witness testimony, and determined it was all admissible. Wangler argued that the methodology of the testing was unproven, unreliable, and not accepted by the scientific community. He also argued that the testifying expert, Dr. Schauer lacked experience and rendered an opinion that the CO in the house came from one of the automobiles in the garage which was unsupported by the evidence.
After a very detailed dissection of the trial court testimony and evidence presented, which can be reviewed in the full appellate court decision available below, the court determined: “We find that the trial court did not abuse its discretion by allowing the jury to consider the testing performed by the Lab and the testimony of the Lab’s employees. This evidence tends to support the conclusion that the exhaust was directly introduced into the duct work. Given the foregoing, we do not find that the probative value of the Lab’s testing and the testimony of the Lab’s employees is outweighed by the “danger of unfair prejudice, of confusion of the issues, or of misleading the jury.”
Exclusion of Appellant’s Expert Witness
Wangler argued that the trial court erred when it prohibited his expert, Frederick Teeters from testifying about candle soot in the Wangler residence. According to Wangler, Teeters would have testified that the chemical fingerprint associated with soot emitted from burning candles is similar to the chemical fingerprint associated with soot emitted from an engine, and that the soot found in the Wangler residence, while seemingly from an engine, was, in fact, from burning candles. The prosecution objected to Teeter’s being classified as an expert and another Daubert hearing was held.
Teeters testified at the Daubert hearing that much of his experience involved analyzing chemicals in fluids and using molecular tracers to determine the chemical’s origin. Teeters devoted a sizeable portion of one of his reports to discussing candle soot in residential buildings and whether the soot found in the Wangler residence originated from burning candles. Teeters, however, testified that he does not consider himself to be an expert in candle soot. Teeters also testified that he has never conducted experiments or worked with candle soot. The trial court trial court found that Teeters “has no qualifications to be an expert relative to candle soot in the house.” The appellate court appeared to disagree with that finding, but their only standard for review is whether or not the trial court abused its discretion in making a determination, NOT whether the determination was correct.
Though we may have come to a different conclusion, we find that the trial court did not abuse its discretion when it precluded Teeters from testifying about candle soot. Indeed, Teeters’ testimony established that he had extensive experience in tracing chemicals, particularly those found in fluids, to their origin. However, Teeters lacked experience working with candle soot, a fact he conceded during the Daubert hearing. Lack of personal knowledge concerning candle soot, while seemingly insignificant considering Teeters’ experience with tracing chemicals to their origin, is nevertheless a reasonable ground to exclude testimony concerning candle soot. As previously discussed, soot contains a chemical fingerprint (i.e., a collection of specific molecular tracers) which is used to determine the soot’s origin. Since Teeters had no experience working with candle soot it is reasonable for the trial court to infer that Teeters would not be aware of the chemical fingerprint or fingerprints associated with candle soot.
Prior to the Daubert hearing another defense expert did testify that candle soot and car engine soot have similar properties. While Teeters would have testified that the soot found in the Wangler home was from candles and not a car engine due to the chemical properties found, the court found Wangler was not prejudiced by the exclusion of the testimony since the jury could have inferred this conclusion. Law Med thinks having Teeters state it to the jury plainly would have had a far greater impact. It also raises the issue that when an expert could either reasonably be admitted for testimony or reasonably excluded, should a court not err on the side of the defendant and allow his expert to testify? Especially when the testimony presents an alternative theory to evidence at the heart of the prosecution’s case in a murder trial?
Denial of Material Evidence
Wangler argued that the trial court erred when it refused to order the State to provide all information from Elemental Carbon – Organic Carbon analysis (“ECOC analysis”) conducted by the Lab and data considered by Dr. Schauer to calculate depositional velocity (“depositional velocity data” or “data”), claiming such evidence would have gone to proof of innocence, thus denying him a fair trial.
Known as the Brady rule, it is well settled that the prosecution’s suppression of evidence favorable to an accused violates due process where the evidence is material either to guilt or punishment, irrespective of the prosecution’s good or bad faith. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194 (1963).
The Bray Rule is violated when the favorable evidence that was not disclosed by the prosecution “could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” The key issue in a case where favorable evidence is alleged to have been withheld by the prosecution is whether the evidence is material. State v. Johnston, 39 Ohio St.3d 48, 60 (1988). “The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense.” State v. Jackson, 57 Ohio St.3d 29, 33 (1991) The court found:
Though the testing performed by the Lab was central to the State’s case, review of the record reveals that had the results of the ECOC analysis been disclosed the results could not reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. We find that the depositional velocity data was not material to Mark’s guilt, and therefore find no Brady violation.
So, while some of the arguments by Wangler on appeal were found valid, none rose to the significance required for the court to order a new trial.
Read the full appellate decision below.
appeal, anesthesiologist, murder, Mark Wangler, Wangler, trial