ST. MARYS — A convicted murderer is hoping to get his appeal heard by justices from Ohio’s highest court.
On May 14, Katherine Szudy, the attorney for Gordon W. Diggle III, filed a request to have her client’s case heard in the Ohio Supreme Court. Diggle was convicted in 2011 on murder, felonious assault and aggravated robbery charges in the Sept. 8, 2010, beating death of Steven Casad in the alley behind the Friendly Tavern. He was sentenced to 25 years to life in prison.
Diggle appealed his conviction and sentence to the Third District Court of Appeals in Lima, but judges rejected Szudy’s arguments earlier this year. In that case, Szudy argued the trial court abused its discretion when it failed to merge the murder and aggravated robbery charges. She also claimed two additional assignments of error — ineffective counsel and the inability to cross-examine Casad during the trial to question him about statements made to various individuals before his death.
In her initial briefs to the Ohio Supreme Court, Szudy claimed comments made by Casad to law enforcement outside an ongoing emergency setting constituted testimonial statements, which should not have been permitted.
Casad told first responders that Diggle had attacked him in the alley of the Friendly Tavern, which several witnesses testified to during the trial.
“The statements that were made by Mr. Casad, which were in response to questions that were asked by Officer Turpin, and in the presence of Captain Kramer, Mr. Scott, Captain Sweigart, and Sergeant Eberle, were testimonial, and should not have been permitted to be heard by the jury,” Szudy wrote. “Officer Turpin was the first officer who arrived at the Casad/Fischer residence. He testified that upon his arrival, Mr. Casad was ‘very excited.’ But Officer Turpin’s objective upon arrival was ‘to begin a criminal investigation.’ And when Mr. Casad said that Mr. Diggle ‘did it,’ Officer Turpin considered that a part of his criminal investigation. Indeed, once Mr. Casad named Mr. Diggle as the assailant, Mr. Diggle “became the main suspect” of the investigation: There was no ‘ongoing emergency,’ as Mr. Casad did not claim that he was attacked with a gun, and the police never testified as to whether they believed that other citizens of St. Marys were in danger.”
Szudy noted the statements were not subject to cross-examination during Diggle’s trial.
“The testimonial statements of Mr. Casad, who was not available as a witness at trial, and whose out-of-court statements had never been subjected to cross-examination, should not have been admitted into evidence,” Szudy wrote. “If cross-examination is impossible, as in this case, the admission of that evidence leads to an unconstitutional conviction.”
Szudy also argued Diggle received ineffective assistance because she claimed Diggle’s trial attorneys failed to read and understand the court’s three-page entry regarding a motion in limine to preclude statements Casad made at the hospital to Turpin. It was during this conversation when Casad named Diggle as his assailant and provided details to Turpin about the attack.
“In the April 16, 2011, journal entry, the trial court ruled that the statements that Mr. Casad made to Officer Turpin at the emergency room were testimonial, and therefore inadmissible at trial,” Szudy wrote. “During Mr. Diggle’s trial, however, defense counsel had a clear misunderstanding of the trial court’s ruling, and opened the door to the exact testimony that was excluded as a part of defense counsel’s motion in limine. Defense counsel’s failure to read the trial court’s three-page entry regarding Mr. Diggle’s motion in limine was unreasonable and prejudicial. There is no conceivable reason as to why counsel would welcome this inadmissible evidence against Mr. Diggle ... The statements that Mr. Casad made to Officer Turpin at the hospital were by far the most damaging to Mr. Diggle’s defense.”
According to online records, Diggle is currently serving his term in the Toledo Correctional Institution. He isn’t scheduled for a parole hearing until October 2035.