January 4, 2005
Portage County men won't get new trial
Appeals judges rule original verdicts were reliable for two convicted of murder
By Ed Meyer
More than 2 ½ years after a judge overturned their rape and murder convictions and granted them new trials, Randy Resh and Bob Gondor were dealt another blow in a 2-to-1 decision by the 11th District Court of Appeals in Warren.
The long-awaited decision was made Thursday, the day before New Year's Eve, but was not released until late Monday morning on the court's Web site.
Judge Cynthia Westcott Rice wrote the opinion and was joined by Judge Mary DeGenaro in ruling against the two Portage County men, essentially finding the new-trial order issued by visiting judge Charles J. Bannon in June 2002, after eight days of evidentiary testimony, was wrong.
Rice and DeGenaro found the original verdicts ``reliable and worthy of confidence'' despite Bannon's findings, showing the two men were denied their right to effective counsel because their original defense lawyers had never used potentially exonerating evidence at their 1990 trials.
They based their opinion, some 40 pages in length, on the premise that the original juries believed the testimony of the first man convicted in the case, Troy Busta of Hiram.
Busta, faced with the possibility of execution, never went to trial. He instead struck a deal with Geauga County prosecutors to avoid death row by agreeing to a lesser charge, and then testified that Resh and Gondor were his co-conspirators in the crime.
The state's only scientific evidence supporting Busta's claims were purported bloodstains later shown to most likely be drops of perspiration.
Those droplets were allegedly found by a state investigator in the bedliner of Gondor's pickup truck -- 18 months after the murder when the truck finally was impounded. The state alleged the truck was used to dispose of the victim's body.
Justice William M. O'Neill, the presiding judge in the case, based the crux of his dissenting opinion on the fact that the original juries ``did not hear evidence that the substance in the bedliner WAS NOT BLOOD'' (original emphasis in boldface).
Because the juries did not hear that evidence, O'Neill wrote, Bannon was correct in ruling that the verdicts were ``not worthy of confidence.''
``No reasonable trial strategy,'' O'Neill wrote, ``would support the omission'' of the finding that the stains were not blood.
Resh and Gondor, friends since the first grade at Mantua Center Elementary School, were convicted in separate jury trials of the 1988 rape and murder of 31-year-old Connie Nardi, a divorced mother of two from Randolph Township. Her body was found in a pond off Rapids Road in Geauga County's Troy Township on Aug. 15, 1988, the day after she was last seen at the Upper Deck Bar in Mantua Township.
Busta, Resh and Gondor, the three suspects, were all at the bar that night at various times, according to court testimony.
Reacting to the 11th District's opinion, Gondor said in a telephone interview from Grafton Correctional Institution that he and Resh will appeal the decision to the Ohio Supreme Court.
``This is not finished,'' Gondor said. ``We're going to take it to the Supreme Court, the federal courts, or as far as we have to take it.
``It's a perfect example of how an appellate court missed the ball. They just missed everything.''
The two men, who have spent more than 14 years in various state prisons, were in an open area of the same cell block at Grafton on Monday afternoon when Gondor said he broke the news to his friend.
``Randy was shocked. When I told him,'' Gondor said. ``He curled his eyebrows up and said: `We lost?' He was just stunned -- and still is.''
Portage County Prosecutor Victor V. Vigluicci, who appealed Bannon's decision one month after it was issued, thereby indefinitely suspending the new-trial orders, said he was ``not surprised'' by the ruling.
``I think they did justice to the case,'' Vigluicci said.
He said he is ``absolutely'' convinced the original juries made the correct decisions in convicting Resh and Gondor, but refused to say whether he would take them to trial again in the event that the Ohio Supreme Court agrees to hear the case and upholds the new-trial orders.
``I don't speculate,'' Vigluicci said. ``They first have to get their case into the Supreme Court.''
Vigluicci, who was not directly involved in either the investigation of Nardi's death or the 1990 trials of Resh and Gondor, said he felt the discredited blood evidence was not paramount to their convictions.
He said Busta's testimony was, and that the juries believed Busta's ``eyewitness'' account of the rape and murder.
However, according to court documents in the evidentiary hearing preceding Bannon's new-trial orders, Busta told his lawyers and their investigator -- in a 50-page recorded interview -- that he was willing to do ``anything I have to do to get myself out of this.''
Judges Rice and DeGenaro also referred to Busta's ``credibility problems'' during cross-examination at the 1990 trials. ``Notwithstanding these problems,'' Rice wrote, ``the jury believed Busta,'' trusted the police investigation and voted to convict the two men.
Gondor's lawyer, Stephen Bradley of Cleveland, said he intends to file a notice of appeal to the Ohio Supreme Court within the allotted 45 days.
The original Portage County prosecutor in the Resh and Gondor cases was David W. Norris, who resigned from office in September 1994 after pleading guilty to a federal charge of cocaine possession. He was last known to be working in the Florida public defender's office, teaching trial preparation to new lawyers.
Ed Meyer can be reached at 330-996-3784 or firstname.lastname@example.org