Summit County juries — twice — convicted Willard McCarley of killing his ex-girlfriend.
Appellate courts — twice — kicked the case back for a new trial because of trial errors.
McCarley, who has now been in prison for 11 years, will have his third trial for the 1992 death of Charlene Puffenbarger starting Tuesday in Summit County Common Pleas Court.
McCarley, 53, has maintained his innocence since he was charged in 2004, 12 years after Puffenbarger’s violent death in the Twinsburg Township apartment she shared with her two young sons. Puffenbarger’s family, however, remains convinced that he killed her to keep from paying child support for their son, Derrek, then 2.
“No one should have to go through this one time,” Phyllis Puffenbarger, Charlene’s mother, said after a recent pretrial. “We’re here. We’ll deal with it again. With God’s help, he’ll get us through this.”
Not everyone, however, is convinced of McCarley’s guilt. Carmen Roberto, one of McCarley’s attorneys in his first trial, said he was shocked when the jury convicted him.
“I don’t think there’s enough evidence to prove guilt beyond a reasonable doubt unless they have collected something above and beyond what they had when I tried the case,” Roberto said in a recent interview.
Judge Joy Oldfield, who was elected to Summit County Common Pleas Court in November, will preside over McCarley’s third trial. His first two trials were handled by retired Judge Marvin Shapiro.
“She’ll get her feet wet right off the bat,” said Shapiro, adding that he thinks Oldfield is up to the challenge.
The appellate courts have limited what prosecutors may present in McCarley’s latest trial, and Oldfield in pretrial rulings has further narrowed the evidence that can be included. Attorneys on both sides joke that working on the case reminds them of law school, with weighty issues debated like due process, excited utterances and hearsay.
The question is, given these challenges, which side will present the better case to a third jury? And, if McCarley is again convicted, will this verdict withstand the challenge of higher courts?
The case
Puffenbarger, 26, was found dead on Jan. 20, 1992, in her home in the Pinewood Gardens Apartments in Twinsburg Township. She was strangled with a belt, suffocated with a pillow and struck on the head.
A concerned neighbor pounded on the door and got Puffenbarger’s two sons, ages 2 and 3, to unlock it. The boys were alone and unharmed. There were no signs of forced entry.
An arrest wasn’t made for more than a decade, but the Puffenbarger family never lost hope. To mark the anniversary of her death, they blanketed Twinsburg Township with posters, asking anyone with information to come forward.
“I just want to keep it in people’s minds,” Phyllis Puffenbarger told the Beacon Journal in January 1998.
The Summit County Sheriff’s Office, which investigated the case with Twinsburg police, formed a cold case task force to take another look at Puffenbarger’s death in 2001.
Four years later, McCarley, then 41 and a Ford worker living in Northfield, was arrested and charged with aggravated murder. Investigators said the break in the case was new DNA testing that linked DNA from a leather belt used to strangle Puffenbarger to DNA obtained from McCarley.
Sheriff’s Capt. Larry Momchilov, who died recently, told the Beacon Journal at the time that tips from the public helped to zero in on McCarley, who had been a suspect from the beginning.
First trial
DNA became the crucial evidence in McCarley’s first trial in 2005, especially because it was the only physical evidence that tied him to the murder.
At the time, DNA evidence wasn’t as sophisticated or used as often as it is today.
Defense attorneys argued the DNA was a partial profile, was far from conclusive and didn’t identify McCarley as the only source. The belt, they said, could have been handled by males related to McCarley, including his son.
“It was back then a very uncertain science,” Roberto said. “All they could say was, ‘This person cannot be eliminated from the pool.’ That was the most interesting factor.”
Prosecutors paired the DNA with the fact that McCarley and Charlene Puffenbarger were involved in a paternity dispute and she had told several people she was afraid of him. They say McCarley told Puffenbarger he “would see her dead before he pays her child support.”
McCarley proclaimed his innocence at his sentencing. He said he was home sleeping when the murder occurred.
“The family has my sympathy, but I’m going to prison for something I didn’t do,” he said. “I’m the only person I know of that can go to prison for sleeping on a couch and snoring too loud.”
Shapiro sentenced McCarley to life in prison with the possibility of parole after 20 years.
A year later, in 2006, the 9th District Court of Appeals ordered a new trial for McCarley because of a complimentary statement Shapiro made in front of the jury to Dr. Dawn Lord, a former child psychologist, while she was on the witness stand. The statement was seen as prejudicial.
Shapiro said he thought the statement, which wished Lord luck with a licensing problem, was innocuous.
“I don’t take exception,” he said of the appellate decision. “There was no malintent.”
Second trial
Summit County prosecutors expressed confidence on the eve of McCarley’s second trial in January 2007, saying the case would be handled like a retrial after a hung jury.
Prosecutors essentially presented the same case, relying on the DNA evidence and witnesses whom Puffenbarger told she feared McCarley. For the motive, they again pointed to McCarley’s desire to avoid paying child support.
The second jury reached the same conclusion as the first.
Phyllis Puffenbarger expressed relief, saying there were “no words” to describe how difficult a second trial was.
“I just hope we never have to do anything like this again,” she said.
Derrek Puffenbarger, then 17, spoke to his father for the first time at his sentencing, telling him, “You are worthless.”
McCarley reiterated his innocence claim and said he planned to appeal.
Shapiro again sentenced McCarley to life in prison with the possibility of parole after 20 years.
In 2014, the U.S. Sixth Circuit Court of Appeals ordered a new trial for McCarley, this time faulting Shapiro for allowing Lord, the child psychologist, to read into evidence notes from her sessions with Puffenbarger’s 3-year-old son, Dustin, who claimed to have witnessed his mother’s murder and identified McCarley as her attacker. The court noted that defense attorneys weren’t given the opportunity to cross examine Dustin and said Lord was working with investigators by sharing information with them.
The appellate court said the removal of Lord’s testimony, and particularly Dustin’s eye-witness identification, would make the state’s case collapse “into disjointed pieces.”
Third trial
Oldfield further narrowed the evidence that can be presented in McCarley’s third trial.
In pretrial orders, Oldfield said she will allow testimony from two of Puffenbarger’s friends whom she talked to about an argument she had with McCarley on the day before her death.
Oldfield also said she will permit Phyllis Puffenbarger, Charlene’s mother, to testify about statements Dustin made to her four days after his mother’s death as he was playing with a toy telephone while looking at a picture of his mother. These included Dustin saying, “I am going to get the belt,” “Get the stick,” and “Put tape on her.”
Oldfield, however, said she won’t allow Phyllis Puffenbarger and two other of Charlene Puffenbarger’s friends to testify about statements Charlene made about being fearful of McCarley. She said these statements are hearsay.
The judge also said she won’t permit Dustin’s statements to Lord, the child psychologist, to be admitted, nor the testimony of another woman with whom McCarley had a child. The woman claims McCarley fought against paying her child support and was abusive. Oldfield said her testimony would be “undue prejudice.”
Oldfield will allow prosecutors to admit the previous testimony of a witness who died and another who is infirm. Prosecutors plan to have people from their office stand in for these witnesses, reading their testimony.
The prosecution’s other witnesses include Lord and Dustin, who reportedly has no memories of his sessions with Lord and only vague recollection of his mother’s murder.
In his final pretrial, McCarley rejected the prosecution’s plea offer, which involved him pleading guilty to murder and getting 15 years to life in prison.
Scott Rilley and John Greven, McCarley’s attorneys for his third trial, and the assistant prosecutors, Jonathan Baumoel and Jay Cole, were unwilling to discuss the new trial in advance of it starting.
Phyllis Puffenbarger and Ken Puffenbarger, Charlene’s brother, were willing to speak, but only briefly. They were concerned about saying something that might hurt the latest trial.
“This is not easy for us as a family,” said Ken Puffenbarger. “This is not something we anticipated doing again.”
Stephanie Warsmith can be reached at 330-996-3705, swarsmith@thebeaconjournal.com and on Twitter: @swarsmithabj .