Appeal Arguments Heard

LIMA — Attorneys from both sides argued their cases in front of judges from the Third District Court of Appeals regarding the murder conviction of a St. Marys man last year.

In November, Gordon W. Diggle III filed an appeal in his conviction on murder, felonious assault and aggravated robbery charges. He was sentenced to 25 years to life in prison in the beating death of Steven Casad on Sept. 8, 2010.

Diggle’s attorney, Katherine Szudy, argued her client should receive a new sentencing hearing because the trial court abused its discretion when it failed to merge the murder and aggravated robbery charges. In her merit briefs, Szudy 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 Johnson, the court explains when there is but one offense committed, the defendant may only be convicted of one offense,” Szudy said referencing case law. “The testimony that was used to convict Mr. Diggle — he was accused to have seriously injured Mr. Casad after committing a theft offense. Such conduct constituted aggravated robbery ... That alleged aggravated robbery formed the predicated offense for the felony murder.”

Szudy said because the commission of the aggravated robbery resulted in the death of Casad, the charges should have merged at sentencing.

“Therefore, this court should reverse and vacate Mr. Diggle’s sentences for felony murder and aggravated robbery and remand the case to the trial court to hold a new sentencing hearing for the offense that remains as the state proceeds which felony offense to pursue,” Szudy said.

Judges asked if the act of beating Casad and robbing him were separate incidents — including the degree of force used to commit the offense. Szudy said they were not as the murder came as the result of the aggravated robbery.

“Mr. Diggle allegedly began kicking him (Casad),” Szudy said. “And that is what predicated the aggravated robbery ... and that proximately resulted in Mr. Casad’s death.”

Szudy also argued there was little if any time lapse between the incidents.

“In this case, it was one point in time in which everything happened,” Szudy said.

Auglaize County Prosecuting Attorney Ed Pierce countered Szudy’s claims. He said Diggle was indicted on four counts and not three counts.

“Mr. Diggle was found guilty on all four counts and upon sentencing, he was sentenced on counts one and four — he was sentenced on the murder by commission of felonious assault and sentenced on count four being the aggravated robbery. So there is not the same predicated offense with count one as there is with count four.”

Pierce also addressed the other assignments of error posed by Szudy in her briefs. Pierce said the main issue surrounding the confrontation clause centers on what statements are testimonial and which are nontestimonial in nature.

“When you review the transcripts and record before you, you will find that there is clearly a lot of nontestimonial issues that came before the court,” Pierce said. “Witnesses testified what Mr. Casad said but they were nontestimonial because they weren’t made to law enforcement officers. They were made to his girlfriend, to emergency workers, first responders, people at the hospital and initially a statement to Patrolman Turpin — which is the one potentially that is testimonial and that this court would need to look at. But I would first like to emphasize that there was an abundance of information that went before this court based upon nontestimonial statements by Mr. Casad because they were made to people other than law enforcement.”

Pierce argued statements made by Casad to Turpin at the scene of the emergency were nontestimonial because Turpin was acting as a first responder — not conducting an investigation. At that point, Pierce said there was an ongoing emergency.

“That first responder has a dual responsibility — that dual responsibility to first assess the scene to determine if there is an ongoing emergency,” Pierce said. “And the second role is that of a criminal investigation.”

Pierce said when Turpin arrived, he knew there was an assault but didn’t know much else regarding the incident. Pierce said the setting also plays a factor into whether a statement is testimonial or nontestimonial.

“If it was a formal setting, like a police station, that leans toward the testimonial side as compared to a nontestimonial side,” Pierce said. “Upon his arrival what did he (Turpin) want to know, he wanted to know why, who, where, when and what the location of the assailant is. He did not know the location of the assailant at this point. Turpin asked what happened as the officers and EMS arrived, and it was a simple question of what happened.”

Pierce also tackled Szudy’s claim of ineffective counsel. Pierce said Diggle’s trial attorneys — John Poppe and Eric Allen — executed “sound trial strategy” regarding opening the door to previously excluded comments.

“Contrary to what appellant has stated in briefs, counsel here knew exactly what he was doing and he understood the ruling,” Pierce said. “He was taking every precaution because of his concern there had been a ruling on the motion in limine, that he had to continually preserve that objection and that’s why he continually questioned and objected and went to the bench and explained to trial court why he was objecting. He believed he had to protect the record by doing so.”

Pierce also addressed the second statements made by Casad to Turpin at the hospital. Pierce said the court ruled the hospital statements as testimonial and they were not permitted. Prosecutors did not introduce the statements until Diggle’s attorneys opened the door during a line of questioning in which they attempted to impeach Turpin’s testimony.

“He knew that he was opening the door by making those statements,” Pierce said. “He did that based upon sound trial strategy because all that information was already in and now he wanted to try and contradict and impeachment Patrolman Turpin by the use of those statements.”

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.