a trial court's premature filing of the sentencing order in tiie supreme court of ohio supreme...
TRANSCRIPT
IN TIIE SUPREME COURT OF OHIOSupreme Court Case Number 06-1502
STATE OF OHIO.
Appellee
V.
CLARENCE FRY
Appellant
On Appeal from the SummitCounty Court of Common PleasCase No. 05 08 3007
CAPTTAL CASE
MER1T BRIEF OF APPELLEESTATE OF OHIO
SHERRI BEVAN WALSHProsecuting Attorney
PHIL.IP D. BOGDANOFF (Counsel of Record) #0018887Assistant Prosecuting AttorneyAppellate DivisionSummit County Safety Building53 University AvenueAkron, OH 44308(330) 643-2791
Counsel for Appellee, State of Ohio
DAVID L. DOUGHTEN, ESQ. (Counsel of Record) #00028474403 St. Clair AvenueCleveland, Ohio 44103-1125(216) 361-1112
GEORGE C. PAPPAS, ESQ. (Counsel of Record) #00373741002 Key Building159 S. Main.StreetAkron, Ohio 44308(330) 535-6185
Counsel for Appellant, Clarence Fry
TABLE OF CONTENTS
:.....TABLE OF AUTHORITIES .................................................... ...............
STATEMENT OF CASE ..:..............................................:...................:.........
STATEMENT OF FACTS ............................................................... .............
ARGUMENT ..................................................... ............................................
Proposition of Law I:
A Trial Court Should Not Replace Counsel Prior To TheMitigation Hearing Where There Is No Evidence Of ABreakdown Of Communications Between The DefendantAnd His Attorheys ...........:.................................................................
Proposition of Law H
A Defendant Can Properly Waive His Right To PresentMitigating Evidence Where The Waiver IsMade Kriowingly And Voluntarily ....................................................
Proposition of Law In:
A Trial Court's Premature Filing Of The Sentencing OrderPrior To Allocution Can Be Harmless Error ......................:...............
Proposition of Law IV:
A Trial Court's Determination That A Six Year Old ChildIs A Competent Witness Will Not Be Reversed Absent An
PAGE(S)
8
10
13
Abuse Of Discretion .:........................................................................ 15
Proposition of Law V:
A Defendant Waives An Issue On Appeal That Was NotRaised In The Trial Court ......................:...........................:............... 17
Proposition of Law VI:
A Defendant Forfeits His Right To Confront His AccuserWhen He Kills Her To Prevent Her From TestifyingAgainst Him .........................................................................:............. 19
Proposition of Law VU:
A Jury's Verdict Will Be Affinned Where It Is SupportedBy The Evidence ......................................:...........................:............. 22
Proposifion of Law VIII:
An Appellate Court Does Not Have Jurisdiction To ReviewA Verdict That Is Not A Final Appealable Order .............................. 22
Proposition of Law IX:
A Trial Court Does Not Have To Question The DefendantOn Whether He Voluntarily Waives His Right To Testify ................ 25
Propositiom of Law X:
R.C. 2929.04(A)(7) Is Not Unconstitutional And ProperlyNarrows The Class Of Offenders That Should Receive TheDeath Penalty ..................................................................................... 27
Proposition of Law XI:
An Indictment Is Sufficient When It Is In The Words OfThe Applicable Statute ..............:........................:........................,...... 29
Proposition of Law XII:
An Alleged Discovery Violation Is Waived If Not RaisedIn The Trial Court ..............................................................................
Proposition of Law XII:
31
A Defendant Is Not Denied Due Process Of Law When He
Is Charged With Four Counts Of Homicide In The SameIndictment ............................:............................................................. . 33
Proposition of Law XIV:
A General Unanimity Instruction Will Ensure. That TheJury Is Unanimous On The Factual Basis For A Conviction,Even Where An Indictment Alleges Numerous FactualBases For Criminal Liability .............................................................. 35
ii
Propositions of Law XV and XVI:
Death Specifications Do Not Merge Where They HaveSeparate Elements And Punish Different Conduct ............................ 37
Proposition of Law XVII:
A Defendant Is Not Denied Effective Assistance OfCounsel Unless His Attorney Violates An Essential DutyTo His Client ...................:............................................:..................... 40
Proposition of Law XVIII:
An hidigent Defendant Does Not Have The Right To
Choose An AttomeyOf His Choice ....:..................:......:.....:............. 44
Proposition of Law XIX:
A Defendant's Claim Of Cumulative Erior Will Be DeniedWhere The Record Indicates That He Obtained A Fair Trial ..........:. 46
Proposition of Law XX:
Ohio's Death Penalty Statute As Presently Administered InOhio Is Constitutional .................................................:.................:..:.
Conclusion ..........................................:.......................................:..................
Proof of Service .....................................................................:...............:.....:.
APPENDIX
.iournal Entry of the Summit County Court of Common Pleas(July 13, 2006) ...................................:.....................................:...:.....
47
49
Sentencing Order of the Summit County Court of Common Pleas(July 11, 2006) :...........................................................:...................... A-5
Journal Entry of the Summit County Court of Common Pleas(July 10, 2006) .......:...................................:.......................:............... . t\-16
iii
CONSTITUTTONAL PROVISIONS; STATUTES:
R. C. 2903.01 .....:..:.................................................................:....................... A-17R.C. 2903.02 .................................................................................................. A-19R. C. 2903.04 ..............:.....:........................:.......................................:..........: A-20R.C. 2903.211 ..................:...........................:..............................:.................. A-22R.C. 2919.25 ....................... ..................:.c.:.................................................... . A-26R.C. 2911.11 ..:..................................:....:......................................:................ A-28R. C. 2921.04 ....................................... ......................................................... .. A-29R.C.2921.12 ................................................ .................. ................................. A-30R.C. 2929.04 ........:.....................................:..:.....................:....:..................... A-31Crim.R. 8 ....................... :............................................. ................................... A-35Crim.R. 12 ............................................................... ....................................... A-36Crim.R. 14 ............................................. ..................... .................................... A-41Crim.R. 32 ..........................................:..............................:........................:..: A-42Crim.R. 52 .:.:............:.::..............:...............:.............................:.........:........... , A-44Evid.R. 404 ....................:.............:..............................:.................................. A-45Evid.R. 601 ...:....:......:..:................:...............................................::............... A-46
iv
TABLE OF AIITIIORITIESCASES: PAGE S
Blakemore v. Blalcemore(1983), 5 Ohio St.3d 217 .................................................:................:....... 17, 21
Hammon v. Indiana(2006), 547 U.S:_, 126 S.Ct. 2266; 165 L.Ed. 2d 224 ..:.......:.............:.... . 19
State v. Ashworth(1999) 85 Ohio St.3d 56, 62, 706 N.E.2d 1231 ....................................... 10
State v. Adams(1980), 62 Ohio St.2d 151 ........................:.........:....:................................ .15, 37
State v. Awan.(1986), 22 Ohio St.3d 120 ...:.:...................:..............................:............... 27, 29
State v. Bey(1999), 85 Ohio St.3d 487, 499, 709 N.E.2d 484 .................................... . 25
State v. Blalock8th Dist. No. 80419, 80420, 2002-Ohio-4580 .......................................... 33
State v. Bradley(1989), 42 Ohio St.3d 136 ...............:.........................:..:........................... 40
State v. Bryan(2004), 101 Ohio St.3d 272. 804 N.E.2d 433 .......................................... 47
State v. Buehner(2006), 110 Ohio St.3d 403, 405-406, 853 N.E.2d 1162 ......................... 30
State v. Chamberlain(1964), 177 Ohio St. 104, 202 N.E.2d 695 :..............:.............................. 22
State v. Clark71 Ohio St.3d 466 ................:...................................:............................... 15
State v.Coleman(1988), 37 Ohio St.3d 286 ..........................................................:..:..........
State v. Conway .(2006), 109 Ohio St.3d 412 ...................................................................... 23
v
TABLE OF AUTHORITIES - CONTINUEDCASES: PAGE S
State v. Curry(1975), 43 Ohio St.2d 66, 73, 72 0.O.2d 37, 41, 330 N.E.2d 720 .......... 41
State v. DeHass(1967), 10 Ohio St.2d 230 ...................:.................................................... 24
State v. Elmore(2006), 111 Ohio St.3d 515, 536, 857 N.E.2d 547 .................. ................. 46
State v: Ferguson(2006), 108 Ohio St.3d 451, 464; 844 N.E.2d 806 .................................. 47
State v. Frazier(1991), 61 Ohio St.3d 247, 574 N.E.2d 483 ............................................ 15,28
State v. Gill(1992), 63 Ohio St.3d 53, *55, 584 N.E.2d 1200 .................................... 27,47
State v. Hancock( 2006), 108 Ohio St.3d 57, 68, 840 N.E.2d 1032 ................................... 32
State v. Hand(2006), 107 Ohio St. 3d 378 :..............................:...........:......................... 19
State v. Henderson39 Ohio St.3d 24, *28-29, 528 N.E.2d 1237,**1242 (Ohio,1988)....:....: 28
State v. Hill(1996), 75 Ohio St.3d 195, 212, 661 N.E.2d 1068 .................................. 46
State v. Horn6th Dist. No. OT-03-016, 2005-Ohio-5257 ........:...............................:.... 44
State v. Jackson(2005), 107 Ohio St.3d 53, 67, 836 N.E.2d 1173 .................................... 31,44
State v. Jenkins(1984), 15 Ohio St.3d 164, 15 OBR 311, 473 N.E.2d 264 ...................... 37, 38, 39
vi
TABLE OF AUt'HORITIES - CONTINUEDCASES: PAGE SState v. Johnson
(1989), 46 Ohio St.3d 96, 104, 545 N.E.2d 636 ...................................... 35
State v. Landrum(1990), 53 Ohio St.3d 107, 119, 559 N.E.2d 710 .:..........:.................,..:.. 30
State v. Lewis(1993), 67 Ohio St.3d 200, 206, 616 N.E.2d 921 .:.................................. 47
State v. Jenlrs(1991), 61 Ohio St.3d 259 ..................:....:................................................ 22
State v. Long(1978), 53 Ohio St.2d 91, 7 0:O.3d 178, 372 N.E.2d 804 ...................... 18, 35, 37, 44
State v. Marinchek(1983), 9 Ohio App.3d 22, 23, 457 N.E.2d 1198 ..................................... 44
State v. McCoy(Jan. 30, 2002), Summit No. 20656 ....................:..................:.................
State v. Mills(1992), 62 Ohio St.3d 357, 363, 582 N.E:2d 972 ......................:.............
State v. Murphy
29,33
(2001), 91 Ohio St.3d 516 ............................................................:........... 8, 42
State v. Oliver(1995), 101 Ohio App.3d 587, 593, 656 N.E.2d 348 .......................:.....:. 26
State v. Reynolds(1998), 80 Ohio St.3d 670, 683-684, 687 N.E.2d 1358 ........................... 13
State v. Rivers8cn dist. No. 83321, 2004-Ohio-2566 ................................................:...... 31
State v. Roberts156 Ohio App.3d 352, 2004-Ohio-962 .................................................... 17,21
State v. Sadler9th Dist. No. 23256, 2006-Ohio-6910 ...................................................... 20
State v. Schaim(1992), 65 Ohio St.3d 51, 59 .................................................................... 41
vii
TABLE OF AIITHORITIES - CONTINUED
CASES: PAGE S
State v. Skatzes(2004), 104 Ohio St.3d 195, 204, 819 N.E.2d 215 ..........:....................... 32
State v. Smith(1985), 17 Ohio St.3d 98 ..........................................:............................... 40
State v. Stahl(2006), 111 Ohio St. 3d 186 ...................:.:............................:.........:........ 20
State v. Turner(2005), 105 Ohio St.3d 331, *347, 826 N.E.2d 266 ...........:.................... 38
State v. Williams(2003), 99 Ohio St.3d 439, 450, 793 N.E.2d 446 ......:.................:...........
State v. Wise(Dec. 13, 1990), 4m Dist. No. 89-CA-19 .................................... .............. 44
State v. Workman(1992), 84 Ohio App.3d 534, 536, 617 N.E.2d 723 .....................:........... 23
Strickland v. Washington(1984), 466 U.S. 668 :.............:...........................:....................................: 40
CONSTITU'ITONAL PROVISIONS; STATUTES: PAGE S
R.C. 2903.01 .........::.........:.........................................,................................... 1,28R.C. 2903.02 ..........:.............:.....................:.:...................................:..:.......... 1R.C. 2903.04 .............................................. ................................................ .... 1R.C. 2903.211 ....:..................................................................................:........ 1R.C. 2919.25 :...............................:...............:.........................................:....... . 1R.C. 2911.11 ......................................................:........................................... . 1R.C. 2921.04 .................................................................................................. 1R.C.2921.12 ............................................................................................:...... 1R.C. 2929.04 .........................................:........................................................ 1, 22, 27-28,................ .......................... .............................................................................. 38,47Crim.R. 8 ..........................................................:......:...................................... 41Crim:R. 12 ...................................................................................................... 29Crim.R. 14 .......................................................:.....................:........................ 41Crim.R. 32 .:.................................................................................................... 13,22Crim.R. 52 ............................. ......................................................................... 20-21Evid.R. 404 .....................:..............................................................:............... 17Evid.R. 601 .................................................................................................... 15
viii
STATEMENT OF THECASE
For offenses that were committed on July 18, 2005, in count six of the indictment the
Defendant was indicted for one count of Domestic Violence in violation of R.C. 2919.25(A), in
Count Eleven the Defendant was indicted for one count of Domestic Violence in violation of
R.C.2919.25(C), in count twelve the Defendant was indicted forone count of Aggravated
Menacing in violation of R.C.2903.21. In count ten the Defendant was charged with Menacing
By Stalking in violation of R.C. 2903.211(A) that occurred from July 181h through July 3is`,
2005. All other offenses in the Indictment occurred on or about July 31s` 2005.
In count one the defendant was charged with Aggravated Murder in violation of
R.C.2903.01(B), a special felony with two Death Specifications pursuant to R.C.
2929.04(A)(7)/(8) in that the murder occurred during an Aggravated Burglary and the victim was
a witness to a crime and murdered to prevent her testimony. The Defendant was also indicted for
one count of Aggravated Murder in violation of R.C. 2903.01(A), one count of Involuntary
Manslaughter in violation of R:C.2903.04(A), one count of Murder in violation of R.C.
2903.02(A)/(B), one count of Aggravated Burglary in violation of R.C. 2911.11 (A)(1)/(2), one
count of Domestic Violence in violation of R.C. 2919.25(A), one count of Tampering With
Evidence in violation of R.C. 2921.12(A)(3), and one count of Intimidation of a Crime Victim or
Witness in violation of R.C. 2921.04(A)(1). The Defendant pled not guilty to these charges and
the case was assigned to Honorable Judge Patricia Cosgrove.
Prior to trial the State dismissed count three, Involuntary Manslaughter and counts eleven
and twelve, Domestic Violence and Aggravated Menacing. On May 15, 2006 a jury trial
commenced and after hearing all of the evidence in the case the jury found the defendant guilty
of all counts and specifications in the indictment. On June 26, 2007 the mitigation hearing
1
commenced and the defendant voluntarily and knowingly waived his right to present any
mitigating evidence. The defendant permitted his attorney to argue mitigating circumstances to
the jury at the mitigation hearing. The jury returned a verdict sentencing the defendant to death.
On July 11, 2006 the trial court accepted the jury's recommendation and sentenced the defendant
to death.
The trial court merged the defendant's convictions for Aggravated Burglary, Murder, and
Aggravated Murder with his death sentence. The trial court senteiuced the defendant to five years
incarceration for pomestic Violence and merged this sentence with the defendant's other
conviction for Domestic Violence. The trial court also sentenced the defendant to five years
incarceration for Tampering with Evidence, five years incarceration for his conviction of
Intimidation, and eighteen months incarceration for Menacing. by Stalking. The trial court
ordered that all of the sentences are to be served consecutively with each other for a total period
of incarceration of sixteen years and six months. The defendant now appeals his convictions and
death sentence.
2
STATEMENT OF'I'I3E FACTS
Tamela Knox Hardison, age 41, lived with the defendant in an upstairs apartment at 1113
Ackley Street in Akron, Ohio. (T.pp. 940-941). Richard Hatcher lived in the first floor
aparhnent and had heard numerous arguments between the defendant and Ms. Hardison.
(T.p. 1016). On July 18, 2005 Mr. Hatcher heard "screaming and thumping" coming from the
defendant and a young lady. (T.p. 1017). He recognized Tamela's voice and heard her
screaming, "Get off of me. You are choclcing me." (T.p. 1018). He heard the defendant yell,
"Bitch, you are going to die." (T.p.1020). She replied, "Don't kill me. You know, Lain'f done
nothing to you." (T.p. 1020). The defendant yelled back, "Bitch, you gonna die. You gonna die
tonight " (T.p.1020).
Mr. Hatcher called the landlord, David Rogers, and told him that he believed somebody
was in danger. (T.p. 1138). David Rogers and Mr. Hatcher subsequently called the police.
(T.pp. 1021, 1138). When Mr. Hatcher called 911 he lied and stated a gun was involved in order
to get the officers there more quickly. (T.p. 1023).
Officers Michael Rinn and Matthew Hackathom went.to 1113 Ackley Street at 12:42
A.M. responding to this 911 call. (T.pp. 940-942, 955). They went to the upstairs apartment and
heard a female screaming. (T.p. 942). The defendant opened the door after the police knocked
and announced their presence. (T.p. 943). Because the 911 call mentioned a gun, the police
immediately placed the defendant on the ground and handcuffed him. (T.p. 944). Ms. Hardison
was crying in her bedroom and she could not control her shaking. (T.pp. 960-961). Officer
Hackathom noticed that the right side of her face was red and swollen. (T.pp. 962, 971-972).
Ms. Hardison told the police that the defendant struck her in the face ten times and also
threatened to kill her with a leather punch that was similar to an ice pick. (T.pp. 1004-1005).
The police charged the defendant with assault and aggravated menacing and he was taken into
custody. (T.p.980).
Ms. Hardison went to the Domesfic Violence Unit at St. Thomas Hospital where she was
treated for injuries and stated that the defendant hit heron the jaw, strangled her and threatened
her with anice pick. (T.pp. 1043-1045). Ms. Hardison indicated that she was going to her
mother's house and she was told to call 911 if the defendant showed up. (T.p. 1062). Ms.
Hardison told a victim assistance worker, Ms. Juersivich, that she was going to follow through
with the criminal charges. (T.p. 1095):
While the defendant was in the Summit County Jail he made several phone calls to his
mother and to Ms., Hardison. In these phone calls he told Ms. Hardison he wanted her to talk to
the judge and to drop the charges. He desperately needed to go back to worlc or he would lose
his job. (State's Exhibit 19). During these phone calls the defendant told Ms. Hardison that she
really did not know him and that he had a violent history. At one point he eVen bragged that he
had "two toe tags" under his belt, indicating that he had killed two people.
Reid Yoder is the Akron City Prosecutor assigned to this criminal case and on July 18,
2005 the Akron Municipal Court set a 10% $10,000.00 bond for the defendant. (T.pp. 1323-
1324). On July 25, 2005 this bond was modified to a signature bond and the court indicated that
the defendant was to have no contact with the victim. (T.pp. 1326-1327). A pretrial was set for
August 4, 2005 at 9:30 A.M. (T.p. 1328). On July 27, 2005 Mr. Juersivich spoke to Ms.
Hardison and she was very upset because the defendant was out on bond. (T.p. 1096). Ms.
Juersivich talked to her about obtaining a civil protection order in order to protect herself from
the defendant. (T.p. 1104).
4
When the defendant was released from jail he went to his apartment and told his landlord,
Mr. Rogers, he was upset with Ms. Hardison because she had stolen his television, stereo, and
some money. (T.p. 1141). The defendant asked Mr. Rogers why he had given Ms. Hardison the
keys and Mr. Rogers stated he did not give her the keys. (T.p. 1140). Mr. Rogers told the
defendant thaYhe is being evicted but gave him the keys to the apartment and told him to get his
things out of the.apartment and leave it in good condition. (T.p. 1141).
Robin Brooks is a friend of Ms. Hardison and stated that the couple often argued.
(T.p. 1491). In late July Ms. Hardison stayed with her for three nights and was planning to leave
town because the defendant was so violent. (T.pp. 1492-1493). Ms. Brooks had helped Ms.
Hardison move her things out of her apartment including a microwave and stereo. (T.p. 1494).
Delbert Woodley is also a friend of Ms. Hardison and he indicated in July 2005 that Ms.
Hardison was fearful of the defendant. (T.p. 1503). Mr. Woodley also indicated on July 31,
2005 that the defendant was looking for Ms. Hardison. (T.p. 1503).
Nikita Knox is Ms. Hardison's daughter and she lives at 824 Ina Court in A.M.H.A.
Housing with her three children, Jaion Bivens, age 6, Jasown Bivens, age 3, and Demeatrionia
Blackwell.age 2. (T.p. 1175). The defendant was prohibited from being on A.M.H.A. property
based upon his past violent. conduct and was notified that he would be charged with criminal
trespassing if he went on this property. (T.pp. 1297-1298). On July 31, 2005 at 5:45 A.M.
Ms. K nox went to work and left Ms. Hardison sleeping on her couch. (T.p. 1151). Ms. Hardison
was going to watch her three grandchildren that day while Ms. Kiiox was at worlc. (T.p. 1151).
At approximately 1:00 P.M. Jasown Bivens, was playing outside with other children
when he observed the defendant go into his house with a bowl and a knife. (T.p. 1212). Jasown
told the defendant not to go into the house but the defendant ignored him and entered this home.
5
(T.p. 1212). Jasown went in after the defendant and watched the defendant confront his
grandmother who he called "Mawmaw." (T.p. 1212). The defendant asked his Mawmaw,
"Where are my clothes?" (T.p. 1212). He then observed the defendant stab his Mawmaw.
(T.p. 1212). His Mawmaw was bleeding and she told him to "call the cops." (T.p. 1213).
Jasown Bivens then went to a neighbor's house where they called the police. .(T.p. 1216).
Jasown identified the defendant as the person who stabbed lus Mawmaw. (T.p. 1216). Jasown
indicated thathis Mawmaw did not hit Clarence and she was just sitting on the couch when she
was stabbed. (T.p. 1226).
Anthony Sutton was on routine patrol when at 1:06 P.M. he was dispatched to 824 Ina
Court regarding a stabbing. (T.pp. 53-54). When he entered the home he found the body of the
victim on the couch and blood splatters on the wall. (T.p. 1352). Demeatrionia Blackwell was
cuddled against the victim's body. (T.p. 1357). The paramedics were called into the home and
confirmed that Ms. Hardison was deceased. (T.p. 1384). When Ms. Knox returned home she
gave the police the defendant's name as a possible suspect. (T.p. 1362).
Dr. Lisa Kohler is a medical examiner and examined Ms. Hardison's body the following
day. (T.p. 1449). She found four stab wounds on her body but could not identify the sequence
of the wounds: (T.p. 1451). One stab wound was on the upper arm and nicked her breast. A
second stab wound was in the upper back that entered her pleural cavity injuring her lung, and
cutting her aorta and pulmonary artery. (T.p. 1457). This knife wound severed these two large
blood vessels causing massive internal bleeding and killing Ms. Hardison. (T.pp. 1457-1472).
Dr. Kohler indicated that there was a significant amount of force when stabbing the victim and
ruled this death a homicide. (T.pp. 1458, 1476).
6
Detective Bertina King of the Akron Police Department was assigned to investigate this
case and found that the defendant had numerous prior convictions for Domestic Violence.
(T.pp. 1570-1574). The defendant was arrested in Charleston, West Virginia on August 3, 2005.
(T.p. 1528). Corporal Keith Peoples of the West Virginia Police Department arrested the
defendant and the defendant told him, "Remorse, I don't have any remorse for that woman. I
didn't shoot her." (T.p. 1538). The defendant did not have any injuries on his body.
(T.p. 1539). The defendant spoke to his mother while in jail in West Virginia indicating that he
killed Ms. Hardison after she hit him with an ash tray. (State's Exhibits 87-88).
On November 3, 2005 the defendant made a statement to Detective Michael Shaeffer of
the Akron Police Department and confessed to killing Ms. Hardison after she hit him with an ash
tray. (State's Exhibit 94-95). He told the Detective, "I stabbed her. Yeah she was trying to kill
me" (State's Exhibit 94-95). The defendant stated that the shirt he was wearing when he was
arrested was the same shirt he was wearing when he committed the murder. The Akron Police
Department sent the defendant's shirt to the Bureau of Criminal Identification (BCI) in order to
detennine if there was blood on his shirt. (T.pp. 1519-1525). BCI found blood on the
defendant's shirt and after analyzing the DNA in this blood found that the blood came from
Ms. Hardison. (T.p. 1525).
7
PROPOSITION OF LAW I
A TRIAL COURT SHOULD NOT REPLACE COUNSEL PRIOR TO THE 1VITTIGATIONBEARING WHERE THERE IS NO EVIDENCE OF A BREAKDOWN OFCOMMUNICATIONS BETWEEN THE DEFENDANT AND HIS ATTORNEYS.
LAW AND ARGUMENT
The defendant contends that the trial court committed error by not questioning the
defendant on whether he wanted new counsel after the jury found the defendant guilty of the
charges in the indictment but before the mitigation hearing. An indigent defendant has no right
to counsel of his choice and must establish good cause in order to justify appointment of
substitute counsel. State v. Murphy (2001), 91 Ohio St.3d 516, 523. In order to warrant
replacement counsel, the breakdown in the attorney-client relationship must be of such a
magnitude as to jeopardize the defendant's right to effective assistance of counsel. State v.
Coleman, (1988), 37 Ohio St.3d 286, 292.
Here, the defendant never moved for substitute counsel and never alleged that there was
any breakdown of communication between himself and counsel. The motion that was read by
the .court and filed by the defendant indicated that the defendant did not wish to participate in the
mitigation hearing. (T.p. 1892). After inquiry from the court, the defendant indicated that the
jury was, "the dumbest 12 people I ever seem in my life." (T.p. 1899). He did not want to
participate in the mitigation hearing because it was being heard by the "dummy dozen."
(T.p.1900). He wanted his case to be heard on appeal by this Court. (T.p. 1900).
The record does not indicate that there was a breakdown of the attomey client
relationship. The defendant conferred with counsel when deciding whether to make an unsworn
statement and before deciding to allow counsel to argue his case at the mitigation hearing.
(T.pp. 1920, 1960). Attorney O'Brien indicated that defendant's decision to waive mitigation
8
evidence was based upon his dissatisfaction with the jury's attention during trial and their
ultimate verdict. (T.p. 1911). Although the defendant may have been dissatisfied with counsel
after the jury found him guilty of the counts in.the indictment, there is no evidence that there was
a breakdown in communications between the defendant and counsel:
This Court has recognized that the defendant has the right to decide how his case will
proceed:
As we recognized in State v. Berty (1997), 80 Ohio St.3d 371, 686N.E.2d 1097, a criminal defendant maydecid'e how his case willproceed. "A competent criminal defendant may plead guilty to acharge even though he believes himself to be innocent. He maytestify on his own behalf, or refuse to do so, against the advice ofcounsel. He may choose to do without counsel altogether, andrepresent himself. However wise or foolish his decisions, they are.his." (Citations omitted.) Id. at 384-385, 686
State v. Williams (2003), 99 Ohio St.3d 439, 450,793 N.E.2d 446, 462.
The trial court did not commit error in this case.and the defendant's proposition of law is
without merit and must be overruled.
9
PROPOSITION OF LAW H
A DEFENDANT CAN PROPERLY WAIVE HIS RIGHT TO PRESENT MITIGATING -EVIDENCE WHERE THE WAIVER IS MADE KNOWINGLY AND VOLUNTARLLY.
LAW AND ARGiJ1VIENT
The defendant contends that the trial court committed error when the Court found that the
defendant lrnowingly and intelligently waived his right to present mitigation evidence at trial.
This Court has held.that when a defendant decides not to present any evidence at the mitigation
hearing, the trial court should question the defendant and determine whether this waiver is made
voluntarily with an understanding of the importance of mitigation evidence:
We now hold that in a capital case, when a defendant wishes towaive the presentation of all mitigating evidence, a trial court mustconduct an inquiry of the defendant on the record to determinewhether the waiver is knowing and voluntary. The trial court mustdecide whether the defendant is competent and whether thedefendant understands his or her rights both in the plea process andin the sentencing proceedings. ***The trial court must infonn the defendant of the right to presentmitigating evidence and explain what mitigating evidence is. Thecourt must then inquire of the defendant, and make a determinationon the record, whether.the defendant understands the importance ofmitigating evidence, the use of such evidence to offset theaggravating circumstances, and the effect of failing to present thatevidence. After being assured that the defendant understands theseconcepts, the court must inquire whether the defendant desires towaive the right to present mitigating evidence, and; finally, thecourt must make findings of fact as to the defendant'smiderstanding and waiver of rights.
State v. Ashworth (1999) 85 Ohio St.3d 56, 62, 706 N.E.2d 1231,1237. (Citations omitted).
Here, the trial Court conducted an extensive inquiry of the defendant, both attorneys for
the defense and cited to the Ashworth case when finding that the defendant was competent and
voluntarily and lrnowingly waived his right to present mitigation evidence. (T.pp. 1898-1917).
The Court first determined that.the defendant was competent by reviewing the mitigation report
10
and noting that the defendant had a high I.Q. (T.pp. 1894-1895). The Court also questioned the
defendant's attorneys and they both believed he was competent. (T.p. 1907). The defendant
denied having any history of mental illness and indicated that he was able to assist his counsel
during trial. (T.p. 1895). The Court the explained to the defendant that he had a right to present
mitigating evidence and explained what type of mitigating evidence could be presented in his
case including psychological evidence, family background, and that the conduct of the victim
may have facilitated the offense. (T.p. 1902). The defendant stated he understood the purpose of
mitigating evidence and the defendant then defined mitigating evidence as, "Anything that's in
my favor about my character, my history, that shows that, hey, this guy really don't deserve to
die." (T.p: 1903):
The defendant told the Court he understood the importance of mitigating evidence and
that he wished to waive his right to present mitigating evidence. (T.p. 1907). The defendant's
attorneys then summarized on the record the mitigating evidence they had prepared and would
present to the jury. (T.pp. 1908-1910). They indicated that they had reviewed this evidence with
the defendant and they believed he was making an "informed" decision to waive the presentation
of this evidence based upon his dissatisfaction with the jury's decision at trial. (T.p. 1911). The
defendant did not want to present any mitigation evidence because he did not trust the jury and
believed, "They too stupid to tell what time of day it is. You can't trust them no more" (T.p.
1905).
His strategy was to waive the presentation of mitigation evidence and take his chances on
having his death sentence reversed on appeal by this Court: "Let the Supreme court come in
here and say what the hell is going on in Summit County." (T.p. 1914). The defendant then
11
spoke to his attorney before making a final decision that he wished to waive the presentation of
mitigating evidence. (T.p. 1915).
The defendant contends that the court should have told the defendant that there is a low
rate of reversal in the appellate courts and that the jury's verdict on the death specification could
have been supported solely by the Burglary specification. However, Ashworth does not require
that the Court disclose every possible factor in this case as long as the defendant makes a
knowing and voluntary decision to waive the presentation of mitigating evidence. The trial
court's findings are supported by the record and the defendant's proposition of law is without
merit and must be overruled.
12
PROPOSiTION OF LAW III
A TRIAI. COURT'S PREMATIIRE FtLING OF THE SENTENCING ORDER PRIOR TOALLOCUTION CAN BE HAR1yH ESS ERROR
LAW AND ARGUMENT
The defendant contends that this case should be reversed and remanded for a new
sentencing hearing because thetrial court prematurely filed its order sentencing the defendant to
death prior to the sentencing hearing and before allowing the defendant to be heard.
Crim.R. 32(A) indicates that a defendant has a right to allocution prior to sentencing. However,
this Court has considered this exact issue and held that the premature filing of a sentencing order
prior to the allocution may be harmless error because the Court could modify its sentence after
hearing from the defendant:
The state concedes that the trial court acted prematurely in filingits sentencing order prior to the completion of the sentencinghearing. We agree that the trial court should have waited until thesentencing heari ng was completed to file its sentencing order.However, it is apparent to us that Reynolds was not prejudiced bythe court's premature filing.
The trial court sat through the trial and penalty phases of the caseand had listened to the evidence presented as to the aggravatingcircumstances and mitigating factors. The court had from May 31 stuntil June 9th to consider the evidence presented by both sides.Counsel's arguments for Reynolds during the sentencing hearingwere substantially the same as the arguments advanced during thepehalty phase. Had new evidence or information been presentedduring the sentencing hearing, the trial court could have modifiedits sentencing order. We conclude that the premature filing was notprejudicial error.
State v. Reynolds ( 1998), 80 Ohio St.3d 670, 683-684.
Here, the trial court heard from the defense attorney at the sentencing hearing and he did
not present any new evidence at the hearing that had not been heard from the Court at trial.
13
(T.pp. 2019-2021). Further, the defendant's allocution at trial indicated that he had no reinorse
for the victim and that the victim should burn in hell: "You can do whatever you want to do. If
y'all want to put a needle in my arm and poison me because I killed that thieving whore, do what
you have got to, but I hope she burn in hell." (T.p. 2026). Obviously, this statement would not
have been beneficial to the defendant. The State contends that considering the record in the case,
the premature filing of the sentencing order prior to allocution must be considered harmless error.
14
PROPOSITION OF LAW IV
A TRIAL COURT'S DETERNIINATION THAT A SIX YEAR OLD CIIIILD IS ACOMPETENT WITNESS WILL NOT BE REVERSED ABSENT AN ABUSE. OFDISCRETION.
LAW AND ARGUIVIENT.
The defendant contends that the trial court committed error when finding that six year old
Jasown Bivens was a competent witness. Evid.R. 601 states the rule that a child under 10 can be
found competent to testify: "Every person is competent to be a witness except: (A) Those of
unsound mind, and children under ten years of age, who appear incapable of receiving just
impressions of the facts and transactions respecting which they are examined, or of relating them
truly" In order to determine whether a child witness is competent to testify, the trial court must
consider the child's ability to (1) receive accurate impressions of fact, (2) recollect those
impressions or observations, (3) communicate what was observed, (4) iinderstand truth and
falsity, and (5) appreciate the responsibility to tell the truth. State v. Frazier (1991), 61 Ohio
St.3d 247. (Syllabus).
Most importantly, the determination of whether a child is competent to testify is left to
the discretion of the trial court and will not be reversed absent an abuse of discretion. State v.
Clark, (1994), 71 Ohio St.3d 466; 469. This Court has emphasized that the trial court is in a
much better position to detennine whether a child is competent. Id at 470. An "abuse of
discretion" is more than an error of law or of judgment, the term connotes thatthe court's attitude
is unreasonable, arbitrary or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 157.
Here, the trial court conducted an extensive void dire of Jasown Bivens. (T.pp. 1184-
1197). Jasown was six years old wlren he testified and was able to receive accurate impressions
of fact, recollect those impressions and recall what he observed. He told the Court he had a
15
brother, a sister and a dog named "sugar." (T.p. 1188). He knew that a policeman brought him
to court and he was there to talk about Clarence and the day his grandmother was hurt. (T.p.
1189). He knew he was in court and had seen a court on T.V. (T.p. 1196). His favorite subject
in school was gym and he liked to play soccer. (T.p. 1198). He was looking forward to summer
vacation and his mother indicated that they might be going to Cedar Point. (T.p. 1200).
Most importantly, he understood the difference between the truth and a lie and
appreciated the ability to tell the truth. He stated that you get into trouble if you tell a lie and he
would get "grounded" if he told a lie. (T.p. 1190). He told that Court that if he raised his right
hand and promised to tell the truth that he would tell the truth. (T.pp. 1191-1192). He
specifically indicated that he would tell the truth if the attorneys asked him questions about what
happened to his grandmother. (T.p. 1192). It is "right" to tell the truth and it is "not right" to tell
a lie. (T.p. 1195). The trial court's findings that Jasown was a competent witness is supported
by the 7ecord and the trial court did not abuse its discretion when allowing this child to testify.
16
PROPOSITION OF LAW V
A DEFENDANT WAIVES AN ISSUE ON APPEAL THAT WAS NOT RAISED IN THE
TRIAL COURT
LAW AND ARGUMENT
The defendant contends that the trial court committed error when admitting other act
evidence at trial pursuant to Evid.R. 404 (B). A trial court possesses broad discretion with
respect to the admission of evidence and an appellate court will not disturb this ruling absent an
abuse of discretion. State v. Roberts, 156 Ohio App.3d 352, 2004-Ohio-962, at ¶ 14. An abuse
of discretion is more than an error of judgment; it means that the trial court was unreasonable,
arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217,
219. Here, the trial court did not abuse its discretion when admitting this evidence.
First, the defendant complains that Detective Bertina King testified about other acts of
domestic violence. However, the record indicates that Detective King merely introduced the
defendant's three prior convictions for Domestic Violence that were elements of the crime of
Domestic Violence. (T.p. 1569). Detective King did not disclose the facts of these prior
convictions or even identify the victim in these cases. (T.pp. 1560-1576).
Next, the defendant next complains about the "cycle of violence" language usedby two
state's witnesses. However, the State did not introduce any prior acts of the defendant involving
a cycle of domestic violence. Also, Donnell Juersivich, a victim advocate, merely indicated that
she had training in the cycle of domestic violence. Finally, the defendant claims that the State
improperly introduced evidence that the victim's daughter, Nikita Knox, had her home
burglarized and ransacked when vacationing with her children. (T.p. 1149). However, there was
17
no testimony linking the defendant to this crime. The State did not introduce this evidence as
other act evidence.
Most importantly, a review of the record will indicate that the defendant did not object to
this evidence at the time it was offered by the State. (T.pp. 1569,1089-1090,1149, 1162-1163).
A error is waived if not raised at the trial level. State v. Long, (1978), 53 Ohio St.2d 91, 7
0.0.3d 178, 372 N.E.2d 804. (Paragraph one of the syllabus). Further, the defendant has not
argued plain error in this case. This Court will only recognize plain error `with the utmost
caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.
Id (Paragraph three of the syllabus). Here, the defendant has not proven or alleged a manifest
injustice in.thispase_and.his proposition of law is without merit.
18
PROPOSITION OF LAW VI
A DEFENDANT FORFEITS HIS SIXTH AMENDMENT RIGHT TO CONFRONT HISACCUSER WHEN HE KILLS HER TO PREVENT HER FROM TESTIFYING AGAINST
HIlVI IN ANOTHER CASE.
LAW AND ARGUMENT
The defendant contends that the trial court improperly admitted hearsay statements from
the victim, Tamela Hardison. These statements were made on July 18, 2005 immediately after
the assault to the police and to Amy Veney, a forensic nurse at the DOVE unit of St. Thomas
hospital. Because Ms. Hardison did not testify at trial, he alleges a violation of his Sixth
Amendment right to confront his accuser. However, the defendant completely ignores the fact
that the reason the defendant could not confront his accuser is because he killed Ms. Hardison.
After burying this witness, he now seeks to bury her testimonial statements: The defendant
cannot cloak himself under the protection of the Sixth Amendment when he caused the witness
to be unavailable.
The United States Supreme Court has made it clear that under equitable grounds that the
defendant may forfeit his right to confront his accuser when the defendant is the reason that the
witness is not available to testify. Hammon v. Indiana (2006), 547 U.S. , 126 S.Ct. 2266; 165
L.Ed. 2d 224. "That is, one who obtains the absence of a witness by wrongdoing forfeits the
constitutional right to confrontation." Id at 126 U.S. 2280. This Court has also applied the
forfeiture rule when stating that an accomplice's statement was admissible when the defendant
procured his absence for trial. State v. Hand (2006), 107 Ohio St. 3d 378, 396.
Here, the record indicates that Ms. Hardison was going to pursue Assault and
Aggravating Menacing charges against the defendant. The defendant's telephone calls indicate
that he was on probation for another offense, did not want to go to jail, and that he was afraid of
19
losing his job if he went to jail. (State Exhibit 19). He specifically told Ms. Hardison that he
wanted her.to talk to the judge and to get charges dropped against him. (State Exhibit 19). He
also told her that she did not know him very well and that he had a violent past and had killed 2
people by giving them "toe tags." (State Exhibit 19).
Ms. Hardison told Donnell Juersivich from victim assistance that she was going to pursue
the charges against the defendant. (T.p. 1095). She was upset that the defendant was out on
bond and talked about getting a protection order against the defendant. (T.pp. 1096,1104). She
then went into hiding by staying with a friend for several days: (T.p. 1492): She was worried
about the defendant and could hardly sleep. (T.p. 1496). The defendant then went to the home
of Ms. Hardison's daughter with a large knife and killed Ms. Hardison immediately after he
entered this home: Based upon the above record, the defendant killed Ms: Hardison to prevent
her from testifying against him in the Assault and Aggravated Menacing case. The defendant
forfeited his right to confront his accuser.
Assuming that the defendant did not forfeit his right to confront his accuser, the
defendant has not shown prejudicial error in this case. The testimony of Nurse Veney would
also be admissible because it was given in anticipation of amedical exam and not for a law
enforcement purpose. State v. Stahl (2006), 111 Ohio St. 3d 186. Ms. Hardison's statements to
the Akron Police mirror the statements that she made to the DOVE unit and therefore cannot be
considered prejudicial error: "Testimony that is otherwise inadmissible hearsay, when it is also
offered by a witness who is qualified to give the testimony, is considered cumulative and its
admission is therefore harmless." State v. Sadler, 9t1' Dist. No. 23256, 2006-Ohio-6910 at 115.
Crim.R. 52(A) states that, "Any error, defect, irregularity, or variance which does not affect
20
substantial rights shall be disregarded." The defendant was not.prejudiced by the admission of
this testimony by the Akron police.
Finally, although not contained within the heading of the defendant's proposition of law,
the defendant contends that Ms. Hardison's statement to the police.was not an excited utterance
pursuant to Evid.R. 802 (3) and should not have been admitted into evidence. A trial court
possesses broad discretion with respect to the admission of evidence and an appellate court will
not disturb evidentiary rulings absent an abuse of discretion. State v. Roberts, 156 Ohio App.3d
352, 2004-Ohio-962, at ¶ 14. An abuse of discretion is more than an error of judgment; it means
that the trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v.
Blakemore (1983), 5 Ohio St.3d 217, 219. Here, this statement came within minutes of the
defendant strangling and beating Ms. Hardison. Officer Hackathorn testified that Ms. Hardison
was crying in her bedroom and shaking uncontrollably. (T.p. 1004). The State contends that the
trial court did not abuse its discretion when finding that Ms. Hardison was under the nervous
excitement of the event when she spoke to the Akron police. (T.pp. 995-1003). The defendant's
proposition of law is without merit.
21
PROPOSITION OF LAW VII
A JURY'S VERDICT WILL BE AFFIRIVIED WHERE IT IS SUPPORTED BY TIIEEVIDENCE.
PROPOSITION OF LAW VIII
AN APPELLATE COURT DOES NOT I-ILAVE JURISDICTION TO REVIEW A VERDICTTHAT IS NOT A FINAL APPEALABLE ORDER.
LAW AND ARGUMENT
In defendant's eighth proposition of law he contends that he did not commit the murder
with prior calculation and design and his conviction for Aggravated Murder in count two of the
indictment rnust be reversed. The trial court did not sentence the defendant on this conviction
and therefore there is no final order in this case. A conviction without an imposition of sentence
is not a final appealable order. State v. Chamberlain (1964), 177 Ohio St. 104, 202 N.E.2d 695;
Crim.R 32(B). This Court does not have jurisdiction to hear this proposition of law.
In the defendant's seventh proposition of law he contends that the jury's verdict on the
second specification to count one that the defendant killed Ms. Hardison to prevent her from
testifying against the defendant is not supported by the evidence. This Court recognized that the
test to determine whether a conviction was supported by sufficient evidence was "whether any
rational trier of fact could have found the essential elements of the crime beyond.a reasonable
doubt." State v: Jenks (1991), 61 Ohio St.3d 259. (Paragraph two of the syllabus). In
performing this analysis, an appellate court must view the evidence in a light most favorable to
the prosecution. Jenks, 61 Ohio St.3d at 273.
R.C. 2929.04(A)(8) allows the death penalty if "[t]he victim of the aggravated murder
was a witness to an offense who was purposely killed to prevent the victim's testimony in any
criminal proceeding and the aggravated murder was not committed during the conunission;
attempted conunission, or flight immediately after the commission or attempted commission of
22
the offense to which the victim was a witness***." "The plain language of the statute requires
only (1) that the victim was a witness to an offense and (2) that the purpose of killnig the victim
was to prevent the victim from testifying in a criminal proceeding." State v. Conway (2006), 109
Ohio St.3d 412, 422. The State can prove a defendant's state of mind from the totality of the
circumstances surrounding the alleged crime. State v. Workman (1992), 84 Ohio App,3d 534,
536, 617 N.E.2d 723, 725.
Here, the record indicates that Ms. Hardison was going to pursue Assault and
Aggravating Menacing charges against the defendant. The defendant's telephone calls from jail
indicate that he was on probation for another offense, did not want to go to jail, and that he was
afraid of losing his job if he went to jail or remained in jail. (State Exhibit 19). He specifically
told Ms. Hardison that he wanted her to talk to the judge and to get charges dropped against him.
(State Exhibit 19). He also told her that she did not know him very well and that he had a violent
past and had killed two people by giving them "toe tags." (State Exhibit 19). The defendant also
made threats against the neighbor who reported the July 18th assault to the police. (State Exhibit
19). The defendant's conversations with his mother also illustrate that his number one objective
was to have Ms. Hardison drop the charges against him. (State Exhibit 19).
Although Ms. Hardison told the defendant she was going to drop the charges against him,
the record also indicates that she planned to prosecute the charges against him and was merely
trying to niislead the defendant in order that he would not harm her. Ms. Hardison told Donnell
Juersivich from victim assistance that she was going to pursue the charges against the defendant.
(T.p. 1095). She was upset that the defendant was out on bond and talked about getting a
protection order against the defendant. (T.pp. 1096, 1104). She then went into hiding by staying
with a friend for several days. (T.p. 1492). While staying with her friend she was worried about
23
the defendant and could hardly sleep. (T.p. 1496). Approximately 7-10 days after ordering
Ms.Hardison to drop the charges against him and within four days of being released from prison,
the defendant went to home of Ms. Hardison's daughter with a large knife and killed
Ms. Hardison immediately after he entered this home.
In his statement to the police, the defendant claims that he did not bring a knife to 824 Ina
Court when he murdered Ms. Hardison. However. Maurice Vinson testified that the defendant
had a long butcher knife in a bowl before he confronted Ms. Hardison. (T.pp. 1231-1233). The
defendant told Maurice that he was going to use the knife to cut potatoes. (T.pp.1233-1234).
Jason Bivens also observed the lcnife before the defendant entered the house and observed the
defendant stab his grandmother with this knife. (T:p. 1212). The credibility of the witnesses is
an issue for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the
syllabus.
The defendant alleges that he killed Ms. Hardison because she had stolen property from
him and emphasizes the defendant's last words before he killed the victim, "Where are my
clothes?" (T.p. 1212). However, the jury could properly find that the defendant would not kill
the victim merely because she stole his clothes. Instead, there was an overriding reason to kill
Ms. Hardison, to prevent her from testifying against him. Reviewing the evidence most
favorably to the State, the jury could properly find that the defendant killed Ms. Hardison
because she planned to testify against the defendant. The defendant's seventh proposition of law
is without merit.
Finally, assuming this court considers the defendant's eighth proposition of law, the
above evidence also indicated the defendant killed Ms. Hardison with prior calculation and
design. The defendant's propositions of law are without merit.
24
PROPOSITION OF LAW IX
A TRIAL COURT DOES NOT HAVE TO QUESTION THE DEFENDANT ON WHETHERHE VOLUNTARILY WAiVES H[S RIGHT TO TESTIFY.
LAW AND ARGUMENT
The defendant contends that the trial court committed error when the court did not
question the defendant on whether he voluntarily waived his right to testify at trial. The
defendaut's attorneys indicated on the record that they had discussed with the defendant for "five
or six hours" about his testimony during the "last couple weeks." (T.p. 1693). Prior to coming
to Court Attotney O'Brien spent several hours with the defendant and the defendant
unequivocally indicated that he did not want to testify. (T.p. 1694). The Court stated that
because the defendant had decided on his own volition not to testify, the Court would not
question the defendant. (T.p. 1694).
The defendant contends that a defendant cannot. waive his right to testify without a
colloquy with the court where the court insures that the defendant makes a knowing and
voluntary waiver of his right to testify. However, the defendant has not cited to any case, statute
or rule that requires a knowing and intelligent waiver on the record when the defendant decides
not to testify. This Court has specifically rejected this proposition of law: "We agree and hold
that a trial court is not required to conduct an inquiry with the defendant conceming the decision
whether to testify in his defense." State v. Bey (1999), 85 Ohio St.3d 487, 499, 709 N.E.2d 484,
497.
25
Other Ohio Courts that have considered this issue have found that the trial court need not
question the defendant on whether he waiveshis right to testify:
Secondly, appellant cites no authority from this jurisdiction for hisposition. Instead, he cites several cases from state and federalcourts outside Ohio for the proposition that an on-the-recordinquiry should be required. Courts in Ohio, however, have taken acontrary view. See, e.g., State v. Crosson (Mar: 30, 1990),Delaware App. No. 89-CA-26, unreported, 1990 WL 41692; State
v. Morrison (June 2, 1992), Franklin App. No. 91AP-1326;unreported, 1992 WL 125260; Hayes v. Russell (C.A.6, 1969), 405
F.2d 859.
State v. Oliver (1995), 101 Ohio App.3d 587, 593.
The State contends that the defendant's attotneys could indicate that the defendant made
a voluntary and informed decision not to testify in this case. Further, since the record indicates
that the defendant had an1Q of 118 and was above average intelligence; there is noquestion that
he understood his rightto testify. The defendant's proposition of law is without merit and must
be overruled.
26
PROPOSITION OF LAW X
R.C. 2929.04(A)(7) IS NOT UNCONSTPI'iTTIONAL AND PROPERLY NARROWS THECLASS OF OFFENDERS THAT SHOULD RECEIVE THE DEATH PENALTY.
LAW AND ARGUMENT
The defendant contends that Ohio's death penalty statute is unconstitutional because it
does not narrow the persons eligible for the death penalty. First, the State contends that the
defendant has waived this issue on appeal by not raising it in the trial court. This Court has held
that the failure to raise any issue in the trial court regarding the constitutionality of a statute or its
application waives any claim of error. State v. Awan (1986), 22 Ohio St.3d 120. Here, the State
contends that the defendant did not file a motion to dismiss the indictment raising this issue and
has waived this argument on appeal.
Assuniing this issue is properly before this court, the defendant's argument must still fail.
In determining the constitutionality of legislative enactments all enactments enjoy a strong
presumption of constitutionality and doubts regarding the validity of a legislative enactment are
to be resolved in favor of the statute. State v. Gill (1992), 63 Ohio St.3d 53, 55, 584 N.E.2d
1200, 1201.
This Court has considered this exact issue and held that Ohio's death specification
(R.C. 2929.04(A)(7) is not unconstitutional because this specification duplicates the charge of
Aggravated Murder:
R.C. 2929.04(A)(7), which sets forth the aggravatingcircumstances of aggravated burglary and rape, fulfills thatpurpose by allowing the death penalty to be imposed for felonymurder only when the defendant was the principal offender orwhen the murder was premeditated. The finder of fact had to findthat appellant committed murder while committing or attemptingto commit burglary and/or rape and further, that appellant was theprincipal offender or that the murder was premeditated. By such alimitation, the Ohio General Assembly has complied with Zant,
27
supra, by narrowing the class of death-eligible aggravated
murders.
State v. Henderson 39 Ohio St.3d 24, 28-29. (1988)
This Court also found in Henderson that Ohio's death penalty is not unconstitutional
even if the Aggravating Circumstance was identical to Aggravated Murder. "Accordingly, we
hold that Ohio's capital sentencing scheme does not violate the Ohio or United States
Constitutions even if the aggravating circumstances for felony murder (set forth in
R.C.2929:04[A][7] ) are identical to the elements of aggravated murder (set forth in
R.C. 2903.01 [B] )." Id. The duplicative nature of the statutory aggravating circuinstances did
not render the statue unconstitutional since the constitutionally mandated narrowing function was
performed at the guilt phase and the Constitution did not require an additional aggravating
circumstance finding at the penalty phase. Id. This Court has repeatedly rejected this same
argument set forth by the defendant. State v. Frazier (1991), 61 Ohio St.3d 247, 257, 574
N.E.2d 483, 491. The defendant has not set forth any novel arguments why this Court should
reject its previous holdings and his proposition of law is without merit.
28
PROPOSITION OF LAW Xi
AN INDICTMENT IS SUFk'ICIENT WHEN IT IS IN THE WORDS OF THE APPLICABLESTATUTE.
LAW AND ARGUMENT
The defendant contends that defendant's indictment is constitutionally deficient because
count one of the indictment for Aggravated Murder and related death specification do not set
forth all of the elements of Aggravated Burglary in the indictment. First, the.State contends that
the defendant has waived this issue on appeal by not raising it in the trial court. Crim.R. 12(C)
provides that objections based on defects in the indictment, information, or complaint must be
raised before trial. Further, this Court has held that the failure to raise any issue in the trial court
regarding the constitutionality of a statute or its application waives any claim of error. State v.
Awan (1986), 22 Ohio St.3d 120. Here, the State contends that the defendant did not file a
motion to dismiss the indictment and has waived any defects in the indictment. State v. Mills,
(1992), 62 Ohio St.3d 357, 363.
Assuming this Court considers the merits of this issue, the State contends that the
indictment was sufficient because it was in the words of the applicable statute. This Court has
considered this same issue and held that the indictment is not defective because it fails to set
forth the elements of underlying offense:
Further, we have previously rejected the argument that anindictment is defective for the state's failure to identify theelements of the underlying offense of the charged crime. State v.Murphy (1992), 65 Ohio St.3d 554, 583, 605 N.E.2d 884. Thiscourt has held that when the indictment sufficiently tracks thewording of the statute of the charged offense, the omission of anunderlying offense in the indictment can be remedied byidentifying the underlying offense in the bill of particulars. State v.Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215, ¶30. Moreover, we expressly held that "there is no requirement that
29
the indictment demonstrate the basis for the grand jury's findings.The bill of particulars serves this fnnction." Id.Therefore, an indictment that tracks the language of the chargedoffense and identifies a predicate offense by reference to the statutenumber need not also include each element of the predicate offensein the indictment. The state's failure to list the elements of apredicate offense in the indictment in no way prevents the accusedfrom receiving adequate notice of the charges against him.
State v. Buehner (2006), 110 Ohio St.3d 403, 405-406.
This Court has also rejected the defendant's argument in death penalty cases. State v. Landrum
(1990), 53 Ohio St.3d 107, 119, 559 N.E.2d 710.
Finally, the defendant contends that the failure to list the elements of Aggravated
Burglary in the indictment denied the defendant his due process rights and his Sixth Amendment
right to have his case decided by the jury. However, the Court instructed the jury on the
elements of Aggravated Burglary when instructing the jury on the elements of Aggravated
Murder. The court specifically indicated that the State had to prove the elements of Aggravated
Burglary beyond a reasonable doubt. (T.pp. 1842-1846). Similarly, the Court indicated that the
State had to prove the elements of Aggravated Burglary beyond a reasonable doubt when
proving specification one to count one and made reference to the Court's previous definition of
Aggravated Burglary. (T.pp. 1846-1847). The indictment is this case did not deny the defendant
his constitutional rights and the jury properly found the elements of this offense.
30
PROPOSPITON OF LAW XII
AN ALLEGED DISCOVERY VIOLATION IS WAIVED IF NOT RAISED IN TIIE TRIALCOURT
LAW AND ARGUMENT
The defendant contends that the State committed a discovery violation when it did not
turn over to the defense exculpatory evidence that was presented to the grand jury. The
defendant does not specify what evidence was withheld by the State. Instead, he speculates that
the grand jury had before it certain undisclosed evidence favorable to the defense in order to
indict for the lesser crimes of Involuntary Manslaughter and Murder. The defendant also argues
that he should be provided transcripts of the grand jury proceedings to determine if there was any
exculpatory evidence presented to the grand jury.
The State contends that the defendant has waived this issue on appeal by failing to raise a
discovery violation at the trial level or file a motion in the trial court to have the grand jury
transcripts transcribed and made available to the defense. This Coutt has repeatedly indicated
that an issue that was not raised by the defendant at trial is waived on appeal. State v.
Jaclcson (2005), 107 Ohio St.3d 53, 67, 836 N.E.2d 1173, 1194. Further, the Criminal Rules
place the burden of raising a discovery violation on the defendant by filing a motion prior to
trial:
Crim.R. 12(C)(2) & (4) states, in pertinent part, " Prior totrial, any party may raise by motion any defense, objection,evidentiary issue, or request that is capable of determinationwithout the trial of the general issue. The following must be raisedbefore trial: (2) Defenses and objections based on defects in theindictment * * *; (4) Requests for discovery under Crim.R. 16"(Emphasis added.) "The plain implication of that requiremeirt isthat failure to object waives any error the defect involves." State v.
Hous, Greene App. No. 02CA116, 2004-Ohio-666.
31
State v. Rivers, 8"' dist. No. 83321, 2004-Ohio-2566at¶11.
Here, there is no record regarding any of the allegations now raised by the defendant. By failing
to raise a discovery violation at trial; the defendant has waived this issue on appeal.
Assuming this Court considers the merits of the proposition of law, the defendant's
argument is based upon mere speculation. The defendant cannot point to any evidence that was
withheld by the State and merely speculates why the grand jury returned indictments on lesser
offenses of Murder and Involuntary Manslaughter. Certainly, the grand jury could have based
this indictment upon the defendant's confession that was adnutted at trial. This Court has
indicated that it will not find a discovery violation based upon pure speculation. State v.
Hancoclc(2006), 108 Ohio St.3d 57, 68, 840 N.E.2d 1032, 1047. Further, this Court will not
presume that the state withheld exculpatory evidence from defendant. State v. Skatzes (2004),
104 Ohio St.3d 195, 204. The defendant's proposition of law is witlrout merit.
32
PROPOSITION OF LAW XiII
A DEFENDANT IS NOT DENIED DUE PROCESS OF LAW WHEN HE IS CHARGEDWITH FOUR COUNTS OF HOMICIDE IN THE SAME INDICTMENT.
LAW AND ARGIIMENT
The defendant contends that the indictment in this case was defective because it charged
the defendant with inconsistent theories of the same act. First, the State contends that the
defendant has waived this issue by failing to bring this defect to the attention to the trial court
and filing a motion to dismiss. State v. Mills (1992), 62 Ohio St.3d 357, 363, 582.N.E.2d 972,
980. Assuming this issue has not been waived, the State did not violate the defendant's due
process rights by indicting him for Felony Murder in count one, Murder with Prior Calculation
and Design in count two, Involuntary Manslaughter in count three, and Murder in count four.
The State may present alternative theories of its case and may present multiple charges
based upon different theories of the same criminal act:
In any case, "an indictment may allege conjunctively the offense tohave been committed.in more than one way." State v. Hollis (May15, 1997), Cuyahoga App. No. 70781, at 12. The state may alsoindict a defendant on multiple charges based on different theoriesof the same criminal act. The court may submit multiple offensesof similar import to the jury, although the defendant can only beconvicted of one offense. See R.C. 2941.25(A); State v. Brown
(1988), 38 Ohio St.3d 305, 317, 528 N.E.2d 523; State v. Osborne(1976), 49 Ohio St.2d 135, 144, 359 N.E.2d 78. Therefore,dismissal of these charges would not have been appropriate,though they may have been merged for sentencing. Accordingly,we overrule the eleventh assignment of error.
State v. Blalock, 8`h Dist. No. 80419, 80420,2002-Ohio-4580 at ¶ 76.
Here, the State did not present inconsistent theories of the same criminal act. The State
alleged that the defendant caused the victim's death during a Burglary and with prior calculation
and design. These theories are consistent with each other. A defendant can commit a
33
premeditated murder by breaking into the victim's house after he had a plan to kill her. Further,
the indictment for Murder and Involuntary Manslaughter were also consistent with the other
theories of guilt but indicate that the death was a proximate cause of another crime. These
charges merely incorporated the defense set forth by the defendant in his confession that he did
not plan to kill the victim and obtained the knife in the house. These offenses were lesser
included offenses of Aggravated Murder. (T.p: 1683): Finally, the State dismissed the
Involuntary Manslaughter charge prior to trial. The indictment in this case did not set forth
inconsistent theories of the defendant's guilt and defendant's proposition of law is without merit.
34
PROPOSITION OF LAW XIV
A GENERAL UNANIIVIITY INST'RUCTION WILL ENSURE THAT THE JURY ISUNANIMOUS ON TIIE FACTUAL BASIS FOR A CONVICTION, EVEN WHERE ANINDIC°I'MENT ALLEGES NUMEROUS FACTUAL BASES FOR CRIIVIINAL LIABILPTY.
LAW AND ARGUMENT
The defendant contends that the jury was allowed to consider multiple theories on how
the charges of Menacing by Stalking, Aggravated Burglary, and death specification two to count
one were committed violating his due process rights. First, the State notes that the defendant
never raised this issue at the trial court by requesting jury instructions to limit the jury's
consideration to a single theory of gailt on these charges. An error is waived if not raised at the
trial level. State v. Long, (1978), 53 Ohio St.2d 91, 7 0.O.3d 178, 372 N.E.2d 804. (Paragraph
one of the syllabus). Further, the defendant has not argued plain error in this case. This Court
will only recognize plain error `with the utmost caution, under exceptional circumstances and
only to prevent a manifest miscarriage of justice. Id (Paragraph three of the syllabus). Here, the
defendant has not proven or alleged a manifest injustice in this case.
This Court has indicated that, `the prevailing rule is, "a general unanimity instruction will
ensure that the jury is unanimous on the factual basis for a conviction, even where an indictment
alleges numerous factual bases for criminal liability."' State v. Johnson (1989), 46 Ohio St.3d
96, 104, 545 N.E.2d 636, 644. The only problem arises when a single count can be divided into
two or more distinct conceptual groupings. In that situation "the jury must be instructed
specifically that it must unanimously conclude that the defendant committed acts falling within
one such grouping in order to reach a guilty verdict." Id. In Johnson, the defendant asserted that
the jury could have found that the Aggravated Robbery was committed in different ways.
However, this Court rejected the defendant's arguments stating, `that the jury was presented with
35
a "single conceptual grouping of related facts," rather than two or more "distinct conceptual
groupings."' Id.
Here, the facts of this case were uncomplicated and straightforward. The charges were in
the words of the applicable statates. The Menacing by Stalking and Burglary charges included
alternative facts that were related to the same factual groupings. Further, the trial court did not
present two alternatives in specification two to count one but instructed the jury that they had to
find that Tamela Hardison was a witness to an offense and was killed to prevent her testimony.
(T.pp. 1688, 1847). The defendant has failed to show a manifest injustice in this case and his
proposition of law is without merit.
36
PROPOSITIONS OF LAW XV AND XVI
DEATH SPECIFICATIONS DO NOT MERGE WHERE THEY HAVE SEPARATEELEMENTS AND PUNISH DIFFERENT CONDUCT.
LAW AND ARGUMENT
The defendants in his fifteenth and sixteenth propositions of law argues that the trial court
committed error when failing to merge the two death specifications in this case prior to the
mitigation hearing and prior to the Court sentencing the defendant to death. First, the State
notes that the defendant never raised this issue at the trial court by requesting that the Court
merge these specifications. The failure of the court to merge specification is waived if not raised
at the trial level. State v. Adams (2004), 1.03 Ohio St.3d 508, 533-534. Further, the defendant
has not argued plain error in this case. This Court will only recognize plain error `with the
utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of
justice. State v. Long, (1978), 53 Ohio St.2d 91, 7 0.0.3d 178, 372 N.E.2d 804. (Paragraph
tbree of the syllabus). Here, the defendant has not proven or alleged a manifest injustice in this
case.
"In the penalty phase of a capital prosecution, where two or more aggravating
circumstances arise from the same act or indivisible course of conduct and are thus duplicative,
the duplicative aggravating circumstances will be merged for purposes of sentencing."
State v. Jenkins (1984), 15 Ohio St.3d 164, 15 OBR 311, 473 N.E.2d 264, (paragraph five of the
syllabus) However, even if the trial court committed error in not merging the specifications, this
court can rectify the error without a remand to the lower court by conducting an independent
review of the case: "Should this merging of aggravating circumstances take place upon appellate
review of a death sentence, resentencing is not automatically required where the reviewing court
independently determines that the remaining aggravating circumstances outweigh the mitigating
37
factors beyond a reasonable doubt and that the jury's consideration of duplicative aggravating
circumstances in the penalty phase did not affect the verdict." Jenkins at 15 Ohio St.3d 164, 200.
The State.contends that the two specifications do not merge because they have dissimilar
elements and the evidence was separate and distinct. R.C. 2929.04(A)(7) indicates that the
murder is to take during an Aggravated Burglary, where there is an invasion of a home: "The
offense was committed while the offender was committing, attempting to commit, or fleeing
immediately after committing or attempting to commit ***aggravated burglary, and was the
principal offender *** in the commission of the aggravated murder." The aggravating
circumstance is to enter the dwelling of another in order to commit the homicide.
R.C. 2929:04(A)(8)specification indicates that the victim was a witness to the crime:
"The victim of the aggravated murder was a witness to an offense who was purposely killed to
prevent the victim's testimony in any criminal proceeding and the aggravated murder was not
committed during the commission, attempted commission, or flight immediately after the
commission or attempted commission of the offense to which the victim was a witness*** "
Where the defendant kills a witness to a crime, this Court has noted that the defendant
strikes at the heart of the criminal justice system. State v. Turner (2005), 105 Ohio St.3d 331,
347, 826 N.E.2d 266, 282. The "witness" specification relates to the status of the victim.
Certainly, a witness can be killed without the defendant committing an Aggravated Burglary or
other felony. The State introduced extensive evidence indicating that the defendant assaulted
Ms. Hardison on July 18, 2005, she planned to testify against him, and that the defendant tried to
prevent her testimony. After she indicated to victim assistance that she would pursue these
charges, the defendant murdered her.
38
In comparison, the "Aggravated Burglary" specification indicates that the murder is
committed during another serious crime such as an Aggravated Burglary. The specification
punishes those defendants that commit murder during another serious offense. The two
specifications are dissimilar iirthis case and should not merge.
Finally, assuming the trial Court committed plain error when failing to merge these
specifications, the State contends that any error is hannless error based upon this Court's
independent review of the one aggravating circuinstance and the mitigating factors in this case.
Jenkins at 200. The defendant's 15th and 16th assignments of error are without merit.
39
PROPOSITION OF LAW XVII
A DEFENDANT IS NOT DENIED EFFECTIVE ASSISTANCE OF COUNSEL UNLESS HISA'TTORNEY VIOLATES AN ESSENTIAI. DUTY TO HIS CLIENT.
LAW AND ARGUMENT
The defendant contends that trial counsel was ineffective when he failed to sever certain
counts of the indictment, failed to object to victim impact testimony, failed to object to other acts
evidence, failed to object to the indictment and failed to dismiss a juror for cause. The State
contends that the defendant has not met his burden of proving ineffective assistance of counsel.
The United States Supreme Court has set forth a two-part standard for determining when a
conviction must be reversed upon a claim of ineffective assistance of counsel. The defendant
must show counsel made errors so serious that counsel was ineffective and that the defendant
was prejudiced by counsel's performance:
First, the defendant must show that counsel's performance wasdeficient. This requires showing that counsel made errors soserious that counsel was not functioning as the "counsel"guaranteed the defendant by the Sixth Amendment. Second, thedefendant must show that the deficient performance prejudiced thedefense. This requires showing that counsel's errors were soserious as to deprive the defendant of a fair trial, a trial whoseresult is . reliable. Unless a defendant makes both showings, itcannot be said that the conviction * * * resulted from a breakdownin the adversary process that renders the result unreliable.
Stricldand v. Washington (1984), 466 U.S. 668 at 687.
In demonstrating prejudice to the defense, defendant must prove that, "there exists a
reasonable probability that, were it not for counsel's errors, the result of the trial would have
been different." State v. Bradley (1989), 42 Ohio St.3d 136, paragraph three of the syllabus.
The defendant must overcome the strong presumption that licensed attorneys in Ohio are
competent. State v. Smith (1985), 17 Ohio St.3d 98, 100. Further, trial tactics of counsel do not
40
constitute ineffective assistance of counsel. State v. McCoy (Jan. 30, 2002), Summit No. 20656.
Here, the defendant cannot show that he was prejudiced by counsels' actions or that defense
counsel violated an essential duty to his client.
The defendant first contends that trial counsel was ineffective for failing to sever the
Domestic Violence and Menacing by Stalking counts of the indictment. Crim.R. 8(A) provides
that "[t]wo or more offenses may be charged in the same indictment, information or complaint in
a separate count for each offense if the offenses charged, whether felonies or misdemeanors or
both, are of the same or similar character ***." Crim.R. 14 allows the defendant to sever
charges if the defendant would be prejudiced by the joinder: "If it appears that a defendant or the
state is prejudiced by a joinder of offenses ***, the court shall order an election or separate trial
of counts *** or provide such other relief as justice requires." Joinder is liberally permitted and
is favored under the law. State v. Schaim (1992), 65 Ohio St.3d 51, 59.
"When a defendant claims that he was prejudiced by the joinder of multiple offenses, a
court must determine (1) whether evidence of the other crimes would be admissible even if the
counts were severed, and (2) if not, whether the evidence of each crime is simple and distinct."
Id at 59. Here, the evidence of Stalking and of Domestic Violence form the iminediate
background of the murder and are inextricably related to the inurder. Therefore, this evidence
would have been admissible as other acts evidence pursuant to 404 (B). State v. Curry (1975),
43 Ohio St.2d 66, 73, 72 0.O.2d 37, 41, 330 N.E.2d 720, 725. Further, the evidence in this case
was simpleand direct. These counts were properly joined for trial. The defendant was not
denied effective assistance of counsel when the defendant's trial counsel did not file a motion for
severance:
41
The defendant next complains that trial counsel was ineffective for failing to object to the
testimony of Nikita Knox during trial. Ms. Knox was the victim's daughter and she testified
briefly about her discovery that her mother was murdered and its affect upon her and her
children. (T.pp. 1154, 1155, 1170). The State contends that Ms. Knox provided substantive
testimony in this case during trial and any victim impact evidence was collateral to her
testimony. Further, the decision to object to this testimony is within the scope of trial counsel's
reasonable tactical judgment. State v. Murphy (2001), 91 Ohio St.3d 516, 540, 747 N.E.2d 765,
795. Finally, the defendant has failed to prove how he was prejudiced by this testimony and
defendant has not met his burden of proving ineffective assistance of counsel. Id.
The defendant next complains that trial counsel should have objected to the indictment
because the grand jury did not indicate that the aggravating circumstances outweighed the
mitigating factors. But as argued in the previous propositions of law, the indictment was in the
words of applicable statute and was proper. The defendant was not denied effective assistance of
counsel when trial counsel did not object to the indictment on these grounds.
The defendant next contends that counsel was ineffective when he failed to strike Juror
Hogue.. Juror Hogue indicated in a juror questionnaire that he believed in the death penalty in all
cases. However, during voir dire he told the court that he would follow the law and set aside his
opinions. (T.p. 40). He also told defense counsel that he would consider mitigating evidence
when deciding a verdict and would recommend a life sentence if the mitigating factors
outweighed the aggravating circumstances. (T.pp. 46-47). Trial counsel did not violate an
essential duty to his client by failing to strike Juror Hogue for cause.
Finally, the defendant incorporates by reference his other propositions of law to indicate
that trial counsel was ineffective when he failed to object to these issues. The State will
42
incorporated by reference the responses to these propositions of law toassert that trial counsel
did not violate an essential duty to his client when failing to object. The defendant's proposition
of law is without merit.
43
PROPOSTITON OF LAW XVIII
AN INDIGENT DEFENDANT DOES NOT HAVE TI-IE RIGHT TO CHOOSE ANATTOI2NEY OF HIS CHOICE.
LAW AND ARGUMENT
The defendant contends that he has a constitutional right to an African-American attorney
and that the trial court committed error when failing to appoint an African-American attorney in
this case. First, although the defendant requested an African-American attomey, at arraignment,
he never raised an objection after Attorney O'Brien was appointed represented to him. An error
is waived if not raised at the trial level. State v. Long, (1978), 53 Ohio St.2d 91, 7 0.O.3d 178,
372 N.E.2d 804, paragraph one of the syllabus. The State contends that the defendant has
waived this issue on appeal.
Assuming this Court considers this issue, the defendant has not cited any case or statute
that gives an indigent defendant the right to choose his attomey. Courts that have considered this
issue have indicated that an indigent defendant does not have the right to counsel of his choice.
"As a general proposition, an indigent criminal defendant does not have a constitutional right to
choose the attorney who will represent him at the expense of the state; rather, he is only entitled
to competent legal representation. State v. Horn, 6th Dist. No. OT-03-016, 2005-O1uo-5257, at ¶
11." State v. Jackson, 11`h dist. No. 2004-T-0089, 2006-Ohio-2651 at¶ 43. A defendant does
not have the right to counsel of one's own choosing. State v. Marinchek (1983), 9 Ohio App.3d
22, 23. "The right to counsel must be tempered by the public's right to a prompt, orderly and
efficient administration of justice." Id. "While an indigent criminal defendant has a right to
appointed legal counsel, he does not have an absolute constitutional right to pick and choose that
counsel." State v. Wise, (Dec. 13, 1990), 0' Dist. No. 89-CA-19.
44
The State contends that the Trial Court did not connnit error when refusing to appoint an
African-American attoxney for the defendant. The defendant's proposition of law is without
nlerit.
45
PROPOSTTION OF LAW XIX
A DEFENDANT'S CLAIM OF CUMULATIVE ERROR WILL BE DENIED WHERE THERECORD INDICATES THAT HE OBTAINED A FAIR TRIAI..
LAW AND ARGUMENT
The defendant contends that cumulative error deprived the defendant of a fair trial.
However, as described in the previous propositions of law, the defendant received a fair trial in
this case. `Moreover, "errors cannot become prejudicial by sheer weight of numbers." State v.
Hill (1996), 75 Ohio St.3d 195, 212, 661 N.E.2d 1068.' State v. Elmore (2006), 111 Ohio St.3d
515, 536. The defendant's proposition of law is without merit.
46
PROPOSITION OF LAW XX
OIHO'S DEATH PENALTY STATUTE AS PRESENTLY ADIVIINISTERED IN OIHO ISCONTITUTIONAL.
LAW AND ARGUDIENT
The defendant contends that Ohio's death penalty statute and procedure violate his
constitutional rights. First, the State contends that the defendant has waived these issues by not
raising them in the trial court. State v. Ferguson (2006), 108 Ohio St.3d 451 464. Assuming this
issue is properly before this court, the defendant's argument must still fail. In determining the
constitutionality of legislative enactments all enactments enjoy a strong presumption of
constitutionality and doubts regarding the validity of a legislative enactment are to be resolved in
favor of the statute. State v. Gill (1992), 63 Ohio St.3d 53 55.
First, the State notes that the defendant duplicates verbatim many arguments that have
been considered and rejected by this court. In Ferguson, this Court has rejected the defendant's
arguments set forth in subsection A (arbitrary and unusual punishment), subsection B
(unreliability of sentencing procedures), subsection D (lack of individualized sentencing),
subsection E (burden on right to jury trial), subsection F (Mandatory submission of reports),
subsection H, (aggregation of 2929.04(A)(7) death specification), subsection I, (vagueness of
statute), subsection J (inadequate proportionality review) and N (death penalty statute violates
international law). Id at 464-467. Because the defendant is merely duplicating arguments that
have been rejected by this Court, the State will rely on the Ferguson decision to indicate that
these arguments are without merit.
This Court has also rejected the defendant's argument in subsection C(Induced
ineffective assistance of counsel). State v. Lewis (1993), 67 Ohio St.3d 200, 206, 616 N.E.2d
921. Further, the defendant's brief duplicates verbatim the arguments set forth by the defendant
47
in State v. Bryan(2004), 101 Ohio St.3d 272. In that case this Court summarily rejected these
challenges to the constitutionality of Ohio's death penalty statute. Id at 305. The defendant has
not set forth any reason that this Court should alter its prior decision. The defendant has failed to
prove that Ohio' death penalty statute is unconstitutional.
48
CONCLUSION
Ms. Hardison planned on testifying against the defendant and after entering the house
where she was watching her three grandchildren the defendant killed her to prevent her
testimony. He stabbed her four times. One of the stab wounds was of such great force that it cut
her aorta and pulmonary artery. The defendant committed this murder in front of the victim's 6
year old grandchild. His final word before sentencing was that the victim was a "thieving
whore" and he hoped that she would "burn in hell." (T.p.2026). The defendant's guilt is not in
question and this court should independently determine that the aggravating circumstances
outweigh any mitigating factors. The trial court's death sentence must be affirmed.
Respectfully submitted,
SHERRI BEVAN WALSHProsecuting Attorney
PHILII' D. BOGDA'1`TOFFAssistant Prosecuting AttorneyAppellate DivisionSummit County Safety Building53 University Avenue, 6`h FloorAkron, OH 44308(330) 643-2791Reg. No. 0018887
49
PROOF OF SERVICE
I hereby certify that a copy of the foregoing Merit Brief was sent by7egular U.S. Mail to
Attorney David L. Doughten, 4403 St. Clair Avenue, Cleveland, Ohio 44103-1125 and Attomey
George C. Pappas, 1002 Key Building, 159 S. Main Street, Akron, Ohio 44308, on this 28th day
ofSeptember, 2007.
P IP D. BOGO FFAssistant Prosecuting AttorneyAppellate Division
50
THE STATE OF OHIO
vs.
CLARENCE FRY, JR.(page 1 of 4)
JOURNAL ENTRY
THIS DAY, to-wit: The 11th day of Jtily, A.D., 2G06, now comes the Assistant
Prosecuting Attorney on behalf of the State of Ohio, the Defendant, CLARENCE FRY,
JR., being in Court with counsel, LAWRENCE WHITNEY and KERRY O'BRIEN, for
sentencing; having heretofore on June 14, 2006 been found GUILTY by a Jury Trial
of AGGRAVATED MURDER, as contained in Count 1 of the Indictment, GUILTY by a
Jury Trial of the SPECIFICATION ONE TO COUNT ONE and SPECIFICATION TWO
TO COUNT ONE of the Indictment, GUILTY by a Jury Trial of AGGRAVATED
MURDER, as contained in Count 2 of the Indictment, GUILTY by a JuryTria1 of
MURDER, as contained in Count 3 of the Indictment, a special felony, GUILTY by a
Jury Trial of AGGRAVATED BURGLARY, as contained in Count 4 of the Indictment,
GUILTY by a Jury Trial of DOMESTIC VIOLENCE, as contained in Counts 5 and 6 of
the Indictment, GUILTY by a Jury Trial of TAMPERING WITH EVIDENCE, as
contained in Count 7 of the Indictment, GUILTY by a Jury Trial of INTIMIDATION OF
A CRIME VICTIM OR WITNESS, as contained in Count 8 of the Indictment, and
GUILTY by a Jury Trial of MENACING BY STALKING, as contained in Count 9 of the
Indictment, which offenses all occurred after July 1, 1996.
The Defendant's motion to dismiss the Death Specification is Denied. There is
substantial evidence that the jury found justification for the death sentence.
The sentencing hearing commenced on June 26, 2006, the jury made a
recommendation of "DEATH" for the Defendant on Count l.
Thereupon, the Court inquired of the said Defendant and his counsel if they
had anything to say why judgment should not be pronounced against the Defendant;
and having nothing but what they had already said, and showing no good and
sufficient cause why judgment should not be pronounced:
The Court then announced that it found beyond a reasonable doubt that the
aggravating circumstances outweighed the mitigating factors and that the death
penalty would be imposed.
IN THE COURT OF COMMON PLEASCOUNTY OF SUMMIT
MAY TERM 2006plpri^. 'l_f, h',lU
2QG^ ` ^i i 3 A^ ^' I ^ Case No. CR 05 08 3007
A-1
COPY When imposing a sentence in this case for the non-capital counts, the Court
has considered the overriding purposes of felony sentencing, which are to protect the
public from future crime and to punish the offenders, States vs. Comer, 99 Ohio St..
3d 463, Revised Code Section 2929.11(A).
The Court has considered the need for incapacitating the Defendant and from
deterring the Defendant from committing future crime, whether or not the Defendant
can be rehabilitated and the making of restitution to the victim, the public, or both,
under R.C. 2929.11 in deciding the appropriate sentence.
The Defendant has a lengthy history of criminal arrests and/or convictions for
violent, heinous, and horrendous crimes. The Defendant has numerous convictions
which resulted in prison terms, and has not been rehabilitated to a satisfactory
degree. He continues to be a violent and extremely selfish individual with no
conscience or empathy. He showed no remorse for his crimes, the victim or the
victim's family. The Defendant caused great psychological harm to her family, which
includes young children. It is necessary to punish the Defendant so he cannot
continue committing crimes against women.
The Court, pursuant to Section 2941.25(A), Ohio Revised Code, declines to
sentence said Defendant on the Count 2, Aggravated Murder, Count 3, Murder,
Count 4 Aggravated Robbery, Count 5, Domestic Violence. These offenses merge as a
matter of law into Count 1.
The Court also merges the two capital specifications contained in Count 1 into
a single capital specification.
IT IS THEREFORE ORDERED AND ADJUDGED BY THIS COURT that the
Defendant, CLARENCE FRY, JR., for punishment of the crime of AGGRAVATED
MURDER, as to the death Ohio Revised Code Section
2903.01(B), a special felony, the sentence is DEATH.
IT IS FURTHER ORDERED that the Defendant is to be conveyed by the Sheriff
of Summit County, Ohio, within Five (5) Days to the CORRECTIONAL RECEPTION
CENTER at Orient, Ohio, for immediate transport to the SOUTHERN OHIO
CORRECTIONAL FACILITY at Lucasville, Ohio, and that he be there safely kept until
July 31, 2007, on which day, within an enclosure, inside the walls of said
SOUTHERN OHIO CORRECTIONAL FACILITY, prepared for that purpose, according
to law, the said Defendant CLARENCE FRY, JR., sha11be administered a lethal
injection by the Warden of the said SOUTHERN OHIO CORRECTIONAL FACILITY, or
in the. case of the Warden's death or inability, or absence, by a Deputy Warden of
A-2
COPY
THE STATE OF OHIO
vs.
CLARENCE FRY, JR.(page 3 of'4)
IN THE COURT OF COMMON PLEASCOUNTY OF SUMMIT
MAY TERM 2006
) Case No. CR 05 08 3007
)))) JOURNALENTRY
said Institution; that the said Warden or his duly authorized Deputy, shall
administer a lethal injection until the Defendant, CLARENCE FRY, JR., is DEAD.
Thereafter, the Court proceeded with sentencing as to the remaining counts,
the Defendant, CLARENCE FRY, JR., be committed to the OHIO DEPARTMENT OF
REHABILITATION for a definite term of Five (5) years, which is not.a mandatory term
pursuant to O.R.C. 2929.13(F), 2929.14(D)(3), or 2925.01, for punishment of the
crime of DOMESTIC VIOLENCE, Ohio Revised Code Section 2919.25(A), a felony of
the third (3rd) degree, for a definite term of Five (5) years, which is not a mandatory
term pursuant to O.R.C. 2929.13(F), 2929:14(D)(3), or 2925.01, for punishment of
the crime of TAMPERING WITH EVIDENCE, Ohio Revised Code Section 2921.12, a
felony of the third (3rd) degree, for a definite term of Five,(5) years, which is not a
mandatory term pursuant to O.R.C. 2929.13(F), 2929.14(D)(3), or 2925.01., for
punishment of the crime of INTIMIDATION OF A CRIME VICTIM OR WITNESS, Ohio
Revised Code Section 2921.04(B), a felony of the third (3rd) degree, and for a definite
term of Eighteen (18) months, which is not a mandatory term pursuant to O.R.C.
2929.13(F), 2929.14(D) (3), or 2925.01, for punishment of the crime of MENACING BY
STALKING, Ohio Revised Code Section 2903.211(A), a felony of the fourth (4th)
degree, and that the Defendant pay the costs of this prosecution for which execution
is hereby awarded; said monies to be paid to the Summit County Clerk of Courts,
County Safety Building, 53 University Avenue, Akron, Ohio 44308.
IT IS FURTHER ORDERED, pursuant to the above sentence, that the
Defendant be conveyed to the Correctional Reception Center at Orient, Ohio, to
commence the prison intake procedure.
IT IS FURTHER ORDERED that the sentences imposed in this case be served
CONSECUTIVELY and not concurrently with each other, and to be served
CONSECUTIVELY and not concurrently with Count 1.
A-3
COPY The Defendant is to be placed into solitary confinement every July 31 for
twenty-four (24) hours until he is executed to contemplate what harm he has done to
the victim of the Aggravated Murder.
If the Defendant is released from prison, the Defendant is ordered to serve Ten
(10) years of post-release control. Defendant is ORDERED to pay all prosecutions
costs, including any fees permitted pursuant to O.R.C. 2929.18(A)(4).
Thereupon, the Court informed the Defendant of his right to appeal. pursuant
to Rule 32A2, Criminal Rules of Procedure, Ohio Supierne Court, and further the
court will appoint defense counsel for purposes of appeaI.
APPROVED:July 11, 2006tms 62t:^ cA aro4.
Court of Common PleasSummit County, Ohio
PATRICIA A. COSGROVE, Judge
cc: Prosecutors John Mascola/Angela Walls AlexanderCriminal AssignmentAttorney Lawrence WhitneyAttorney Kerry OBrienBookingCourt ConveyBureau of Sentence Computation CERTIFIEDSouthern Ohio Correctional Facility CERTIFIED
A-4
^i r-clC:
Y(f25 J ' u ' L 1 I 1' 07
UiJTY( E.rii^ OF C;OURTS
IN THE COURT OF COMMON PLEAS
COUNTY OF SUMMIT
Plaintiff
-vs-
CLARENCE FRY, JR
Defendant
CASE NO. CR 2005 08 3007
7UDGE COSGROVE
SENTENCING ORDER
This opinion is rendered pursuant to Ohio Revised Code 2929.03 (F). The Summit
County Grand jury returned an indictment charging the Defendant with Aggravated Murder, with
specifications that the Aggravated Murder was comniitted during the commission of an
Aggravated Burglary and/or to prevent the victim, Tamela Hardison from testifying in another
proceeding or in retaliation for her testimony in the other case. These charges arose out of the
stabbing death of Tamela Hardison, the defendant's girlfriend, on July 31, 2005. On July 18,
2005, Ms. Hardison swore out a complaint against the defendant for Assault. This charge would
be later amended by the Grand Jury to Domestic Violence. The Domestic Violence charge was
pending at the time of Ms. Hardison's death.
A-5
The defendant stood at his arraignrnent and defense counsel entered a plea of not
guilty. The case was tried to ajury which trial commenced on June 2, 2006. The jury returned a
verdict of Guilty to Aggravated Murder as contained in Count One of the indictment together
with specification one and two to Count One setting forth criteria for a capital offense pursuant
to R.C. 2941.14 and R.C. 2929.04 (A) (7). The unanimous verdict was returned on June 14,
In addition to the jury finding the defendant guilty of Aggravated Murder with two
capital specifications, the defendant was found guilty of Aggravated Murder without capital
specifications, Murder, Aggravated Burglary, two counts of Domestic Violence, Tampering with
I1 Evidence, Intimidation of a Crime Victim or Witness, and Menacing by 5talking.
MITIGATION HEARING
Pursuant to R.C. 2929.04 (B), a mitigation hearing was held on June 28, 2006, at
which time the jury was instructed to consider and weigh the aggravating circumstances proved
beyond areasonable doubt, the nature and circumstances of the offeuse, the history, character
and background of the offender, and all of the factors outlined in this section. The State rested
without presentation of additional evidence upon its proof of the two aggravating circumstances
set forth in specification one and two to Count One, the charge of Aggravated Murder.
Prior to the mitigation hearing, the defendant, Clarence Fry Jr. stated on the record
that he had instructed his counsel not to present any evidence at the mitigation hearing. Mr. Fry,
the record during.the mitigation hearing on his behalf. The defendant also declined to make
however,.did permit Attorney Lawrence J. Whitney, one of his attorneys, to make a statement on
either a swom, or unsworn, statement on his behalf at the mitigation hearing.
2
A-6
COPY
Defendant's Competency To Waive Presentation Of Mitigation Evidence
Prior to the commencement of the mitigation hearing, and out of thehearing of the
^. jury, the trial cotut conducted a lengthy inquiry of the defendant and his counsel regarding Mr.
the trial court focused on two issues: 1) whether the defendant was competent to make a
Fry's decision to waive presentation of any evidence at the mitigation hearing. The inquiry by
. . . . . . . , ., _ -•- d evinces a
knowine and voluntarv waiver. As stated numerous times bv the Ohio Supreme Court, a capital
defendant's decision to forgo mitigation "does not by itself call his competence into question".
State v. Cowans(1999), 87 Ohio St.3d 68, State v. Berry {1995), 72 Ohio St.3d 354. 361, State v.
Tyler (1990), 50 Ohio St.3d.
The Eighth Amendment does not require that mitigation evidence be foisted upon a
defendant by his counsel when he has knowingly, and of his own volition, decided against
presentation of such evidence. T lev r, supra at 27-29. In State v. Ashworth (1999)..85 Ohio St.
3d 56. 63, the Ohio Supreme Court emphasized that "a rule requiring the presentation of
mitigating evidence would be impossible to enforce: " Where a capital defendant decides to
waive his right to present mitigation evidence (Tyler) or review a conviction and sentence
(Berry), a court must inquire into his competence to do so if some reason, other than that
decision, exists to question competence. See, also Rees v. Peyton (1966), 384 U.S. 312. Where
no independent reason to question competency exists, no hearing is required. Hammett v, Texas
(1980), 448 U.S. 725.
i capital defendant is mentally competent to forgo the presentation of mitigating evidence *** if
The Ohio Supreme Court has enunciated the following test to determine whether a
the defendant has the mental capacity to understand the choice between life and death and to
A-7
make a knowing and intelligent decision not to pursue the presentation of evidence. The
defendant inust fully comprehend the ramifications of his decision and must possess the abilityto
reason logically, i.e., to choose means that relate logically to his ends." Ashworth, at 69.
The defendant clearly and unequivocally stated that he understood the ramifications
{ of not presenting anyrnitigation evidence, stating that the jury would likely have no choice other
than to vote for a death sentence without any. evidence in mitigation. Mr. Fry knew what
i
mitigating evidence his attorneys were prepared to present, including testimony from his mother,
one of his brothers, and a mitigation expert, Dr. James W. Siddall. According to the defense
proffer, Dr. Siddall would have offered evidence regarding the defendant's rocky relationship
and the defendturt's dwith his father rowin u e that ffected his ja usa m nt d oi idg g p r g g a u g e e s ons.
According to the proffer and Dr: Siddall's report (marked as Court's Exhibit One for• appellate
purposes only), the defendant possesses an average intelligence quotient, scoring in the upper
According to the defendant, as well as his attorneys, the defendant had never been
diagnosed with a mental disease or defect. The defendant had never been counseled or
I hospitalized for any mental problem or illness. Dr. Siddall's report evinces no diagnosis of
mental illness or defect. Further, it was represented to the court that at no time had any family
1 member or friend of the defendant expressed an opinion that Mr. Fry was mentally ill and in
need of psychological or psychiatric treatnient. Both defense counsel, Attorney Lawrenoe J.
Whitney and Kerry O'Brien, two of the most experienced and competent attomeys in the defense
of capital cases, stated that they had observed no behavior warranting a competency evaluation
of the defendant.
A-8
I COPY
The defendant's reasoning for waiving the presentation of mitigation evidence was
° based upon his belief that any jury that had found him guilty of the capital specifications that the
Aggravated Murder of Tamela Hardison occurred during the commission of an Aggravated
Burglary and/or to prevent or retaliate for her testimony in the Domestic Violence case were "too
stupid" in his opinion to follow the Iaw. The defendant rnaintained this position even though the
1. trial court emphasized to the defendant that it only took the vote of one juror to prevent the retiun
of a sentence of death.
Unlike Cowans, the defendant permitted his counsel to conduct a reasonable
investigation of any potential mitigating evidence. Sanders v. Brown, 2006 U:Spn. LEXIS 6672
4 (Brown II . The defendant's attorneys were prepared to present evidence at the mitigation
i. ,i hearing as to why the defendant should not receive a death sentence. The attorneys had
interviewed family and friends of Mr. Fry and were ready to put the defendant's mother and one
of his brother's on the stand. Further, the defense was prepared to present the testimony of
James W. Siddall, Ph.D., a clinical and forensic psychologist that specializes in mitigation
proceedings. It was only after the jury returned a guilty verdict on the Aggravated Murder count.
with capital specifications that the defendant chose to forgo presentation of evidence at the
Although the defendant's behavior throughout the trial at times could be
1 characterized as cavalier, it in no way denoted any indicia of incompetency. At times, during the
course of the trial proceedings, the defendant appeared to be smiling or amused by sorne of the
witnesses' testimony. Despite this behavior, Mr. Fry was observed by the court conferring with
counsel, suggesting or writing down questions for his counsel to ask the witnesses. The behavior
of the defendant, in the court's opinion, afler having the opportunity to observe him in trial for
two weeks as well as pretrial hearings, was the product of the defendant's narcissism and pique
as opposed to evidence of inental illness or disease.
! Knowin¢ And Intellieenf Waiver Of Defendant's RiQht To Present Miti¢ation Evidence
Having detetmined that the defendant was competent to waive mitigation, the court
proceeded to address on the record whether the waiver of the right to present mitigating evidence
was a knowing and voluntary decision by the defendant. As in State v. Ashworth, sunra, the trial
court in this case conducted a colloquy with the defendant to determine that he understood the
importance and ramifications of presenting mitigating evidence, discussed the issue with his
counsel, and confirmed in open court that he wished to waive presentation of evidence.
Pursuant to Ashworth, the record affinnatively demonstrates that (1) the court has informedthe
3 defendanfofthe right to present mitigating evidence, (2).the court has explained what mitigating
evidence is, (3) the defendant understands the importance of mitigating evidence, (4) the
defendant understands the use of mitigating evidence to offset the aggravating circumstances, (5)
{ the defendant understands the effect of failing to present mitigating evidence, and (6) the
defendant wishes to waive initigation. Ashworth at 62.
The defendant responded appropriately to the court's questions. Mr. Fry understood
his right to present mitigation evidence, the purpose of presenting such evidence and even
acknowledged that without the presentation of any evidence at the mitigation hearing, the jury1
would return a death verdict against him. Fully comprehending the nature of the mitigation
evidence, its purpose and the consequences of not presenting any mitigating evidence in
opposition to the aggravating circumstances, the defendant decided of his own free will to waive
presentation of any mitigation evidence. In addition to his opinions regarding the jury, when
CO PY
i asked by the court whether he wanted to die, Mr. Fry stated that at his age (46) that any life
forgo presentation of any evidence: When asked by the court if there was anyone else he wished
sentence was the same as a death sentence.
The defendant stated that it was his voluntary decision not to present any evidence at
the mitigation hearing. He represented that no person had promised him anything, or forced or
coerced him into entering into.his decision to forgo the presentation of evidence. The court also
gave the defendant additional time to speak with his mother who had attended the entire trial.
regarding his decision to waive the evidence. After speaking withhis mother for approximately
i twenty minutes, Mr. Fry indicated that his decision remained the same and that he wishedto
n speak with regarding his decision, Mr. Fry stated that4here was no one that he wished to speak
with regarding the matter.
The defendant acknowledged that both of his attorneys had tried to repeatedly
convince him that it was in his best interest to present mitigation evidence. Despite being so
advised, the Defendant held steadfast in his decision to waive the presentation of evidence at the
mitigation hearing. Based on the defendant's colloquy with the court, the trial court found that
the defendant's decision to waive the presentation of mitigation evidence was the product of
thoughtful decision of the defendant. There is no question based upon the facts presented in the
record that the defendant's decision to forgo the presentation of evidence was the product of a
j! knowing, voluntary and intelligent decision on the part of Clarence Fry, Jr.
1, MITIGATION EVIDENCE PRESENTED AT TRIAL
In spite of the defendant's attempt to preclude mitigating evidence, the record in thisi!I case is not devoid of evidence that could be considered mitigating. During the trial, the defense
was able to develop several mitigating factors that the court later instructed the jury on during the
A-11
penalty phase. The mitigating factors presented for the jury's consideration in the mitigation
phase of this case were as follows: (1) the victim induced or facilitated the crime by striking the
1 defendant on the head with an ashtray during a verbal confrontation with Ms. Hardison who was
judgment and impulse control, (R.C. 2929.04 (B) (7), and (3) the fact that the defendant liad the
31 using drugs (R.C. 2929.04 (B) (1), (2) the defendant's long standing drug nsage that affected his
1i -
love and affection of family members, particularly his mother and at least one of his brothers
(R.C: 2929.04 (B) (7). The court will now discuss each mitigatingfactor in detail.
If as claimed by the defendant, Ms. Hardison had in fact induced or facilitated the
commission of the Aggravated Murder, this would be entitled to great weight. However, apart
from the defendant making this allegation in his statement to police when he admitted killing the
victim, there is not medical or physical evidence to support defendant's assertion. According to
Mr. Fry's statement, he and Ms. Hardison were verbally arguing when she suddenly "hit him
with an ashtray", "'*"' "he saw stars", and then he repeatedly stabbed the victim. There was no
evidence that the defendant was injured in the altercation. He apparently was well enough to flee
to West Virginia immediately after the killing where he remained for several days before he was
apprehended. According to footage from a news report from a West Virginia television station at
the time of defendant's apprehension bypolice, Fry shows no evidence of injury. The defendant
made no claim of a head injurywhen hewas booked into jail in West Virginia or when he was
booked into the Summit County Jail. The defendant was extradited back to Ohio. According to
crime scene photographs, the police never found an ashtray at the crime scene.
The only evidence of provocation comes from the self-serving and unsubstantiated
statement by the defendant to law enforcement. Based on the evidence at trial, this mitigating
actor carries little or no weight with the court. If the defendant was "provoked" by the victim
A-12
COPY
into committing the honucide, this would not explain why the defendant stabbed the victim four
^3 house.
3 times, including twice in the back. Testimony from the victim's grandson indicated that his
grandmother was lying on the couch with another grandchild at the time Mr. Fry entered the
The fact that the victim had a small amount of cocaine in her systeni at the time of her `
death carries little or no weight. The Summit County Medical Examiner, Dr. Lisa Kohler could
induced or facilitated the offense apart from defendant's unsubstantiated assertion.
not pinpoint a time of ingestion. There was no evidence that drdg usage on the part of the victim
The next mitigating factor brought forward by the defendant is evidence of the
defendant's lengthy abuse of illegal drugs, in particular, cocaine. The fact that defendant was a
drug abuser is entitled to some weight. State v. Sowell, 39 Ohio St. 3d 366. This court.finds,
however, that the weight to be given to this mitigating factor is minimal. Although the trial
in his statement to law enforcement that he stabbed the victim due to his drug usage. We are left
testimony demonstrated that the defendant was a frequent user of illegal drugs, he does not allege
to only speculate whether the defendant's drug usage (if he used drugs the day of the homicide)
contributed in any way to the commission of the Aggravated Murder.
The fmal mitigating factor brought forward for consideration by the defense was the
close and loving relationship the defendant had with his mother, and one of his brothers,
Lawrence Fry. During the trial, the State produced numerous taped phone conversations
between the defendant's mother aud the defendant made while incarcerated in jail. State v,
Lawrence (1989). 44 Ohio St. 3d 24. 33.
The court gave little weight to this testimony. While the defendant obviously loves
his mother, it is interesting to note that in the hundred of minutes of phone conversations
recorded with his mother, he only inquired on one occasion as to her health status although she is
disabled in a wheelchair. In the vast majority of the conversations, Fry attempted to justify or
j victim would not be stealing any more clothes. In most conversations, the defendant is asking
? even minimize his actions toward the victim, laughing with his mother at one. point how the
^i . . - . . . . . . .
relationship with his brother, Lawrence, although no specifics about the relationship were
= his mother to send him money for the commissary. The defendant also appeared to have a close
provided in trial.
CONCLUSION
This court concurs with the jury's recommendation that the sentence of death be
imposed on Clarence Fry, Jr. In so concurring, this court has considered all mitigating factors set
for in R C 2929 04 (B) the existence of any other mitigating factors and the aggravating
factors and has applied the type of individualized consideration of mitigating factors as required
by the Eighth and Fourteenth Amendment in a capital case. Eddings. V. Oklahoma, 455 U.S.
104. Based upon other capital cases examined by the court, the death penalty sentence in this
case is not disproportionate to other capital cases with similar facts.
circumstances found to exist by the jury as well as all evidence adduced at trial. As a result, this
court has determined that the aggravated circumstances do outweigh the mitigating factors
beyond a reasonable doubt. The court has considered as a matter of law any relevant mitigating
Based on a review of the record and case precedent, the court fmds that the
aggravating circumstances of which the defendant was found guilty were sufficient to outweigh
the evidence of any mitigating factors presented in this case. The deterniination was made by the
court separately and distinctly from that made by the jury and it was based upon consideration of
A-14
10
;;all the evidence produced in the trial phase of this case. Accordingly, the court sentences the
defendant, Clarence Fry, Jr. to death. This pronounaement was madeon July 11,2006.
IT IS SO ORDERED
Cc: Assistant Prosecutor John Mascolo
JUDGE PATRICIA A. COSGRO
Assistant Prosecutor Angela Walls-AlexanderAttorney Lawrence J. WhitneyAttomey Kerry O'Brien
A-15
coPY IN THE COURT OF COMMON PLEASCOUNTY OF SUMMIT
MAY TERM 2006,
THE STATE OF OHIO ) Case No. CR 05 08 3007)
vS. )
eLAttENCE FRY, JFG_ D iK t)FGCiURiS ) 7OURNAL ENTRY
THIS DAY, to-wit: The.26 day of June, A.D., 2006, now comes the Assistant
Prosecuting Attorney on behalf of the State of Ohio, the Defendant, CLARENCE FRY,
JR:, being in Court with counsel, LAWRENCE WHITNEY and KERRY OBRIEN, for
mitigation hearing.
A verdict of Guilty having been returned by a Jury in this matter, a hearing
was held pursuant to Section 2929.03 of the Ohio Revised Code to determine the
imposition of sentence for the capital offenses herein.
In consideration of all the evidence and testimony presented at the hearing, the
Jury recessed and deliberated.
And thereafter, to-wit: On June 26, 2006 at 8:15 P.M. the Jury having
unanimously found by proof beyond a reasonable doubt that the aggravating
circumstance the Defendant was found Guilty of committing outweighed the
mitigating factors as to the charge of AGGRAVATED MURDER, while the Defendant
was committing, attempting to commit or fleeing immediately after committing or
attempting to commit AGGRAVATED BURGLARY, and for the purpose of escaping
detection, apprehension, trial or punishment for DOMESTIC VIOLENCE.
Based on the above findings, the Jury recommended "DEATH" for the
Defendant on Count 1 and SPECIFICATION ONE AND TWO TO COUNT ONE.
The Defendant be remanded to the Summit County Jail to await sentencing set
for July 11, 2006 at 1:15 P.M.
APPROVED: \,-J LJ `July 10, 2006tms PATRICIA A. COSGROVE ; Judge
Court of Common PleasSummit County, Ohio
cc: Prosecutor John Mascola/Angela Walls AlexanderCriminal AssignmentAttorney Kerry O'BrienAttorney Lawrence Whitney
06JUL 10 AM10. 57
A-16
R.C. § 2903:01
Baldwin's Ohio Revised Code Annotated Currentness
Title XXIX. Crimes--Procedure (Refs & Annos)"(3Chapter 2903. Homicide and AssaultlaHomicide42903.01 Aggravated murder
(A) No person shall pmposely, and with prior calculation and design, cause the death of anotheror the unlawful termination of another's pregnancy:
(B) No person shall purposely cause the death of another or the unlawfnl termination of another'spregnancy while committing or attempting to commit, or while fleeing immediately aftercommittingor attempting to commit, kidnapping, rape, aggravated arson, arson, aggravatedrobbery, robbery, aggravated burglary, burglary, terrorism, or escape.
(C) No person shall purposely cause the death of another who is under thirteen years of age at thetime of the commission of the offense.
(D) No person who is under detention as a result of having been found guilty of or havingpleaded guilty to a felony or who breaks that detention shall purposely cause the death ofanother.
(E) No person shall purposely cause the death of a law enforcement officer whom the offenderknows or has reasonable cause to know is a law enforcement officer when either of the followingapplies:
(1) The victim, at the time of the connnission of the offense, is engaged in the victim's duties.
(2) It is the offerider'sspecific purpose to kill a law enforcement officer.
(F) Whoever violates this section is guilty of aggravated murder, and shall be punished asprovided in section 2929.02 of the Revised Code.
(G) As used in this section:
A-17
(1) "Detention" has the same meaping as in section 2921.01 of the Revised Code.
(2) "Law enforcement officer" has the same meaning as in section 2911.01 of the Revised Code:
(2002 S 184, eff. 5-15-02; 1998 S 193, eff 12-29-98; 1998 H 5, eff: 6-30-98t 1997 S 32; eff. 8-6-97;1996 S 239, eff. 9-6-96; 1981 S 1-; eff. 10-19-81; 1972 H 511)
UNCODIFIED LAW
R.C. § 2903.02
Baldwin's Ohio Revised Code Annotated Currentness
Title XXIX. Crimes--Procedure (Refs & Annos)R®Chapter 2903. Homicide and Assaultrf^Homicide1Ii2903,02 Murder
(A) No person shall purposely cause the death of another or the unlawful termiuiation of another'spregnancy.
(B) No person shall cause the death of another as a proxima.te result of the offender's committingor attempting to commit an offense of violence that is a felony of the first or second degree andthat is not a violation of section 2903.03 or 2903.04 of the Revised Code.
(C)Division(B) of this section does not apply to au offense that becomes a felony of the first orsecond degree only if the offender previously has beemconvicted of that offense or anotherspecified offense.
(D) Whoever violates this section is guilty of murder, and shall be punished as provided insection 2929.02 of the Revised Code.
(1998 H 5, eff. 6-30-98; 1996 S 239, eff. 9-6-96;1972 H 511, eff. 1-1- 74)
UNCODIFIED LAW
2005 S 20, § 3, eff. 7-13-05, reads:
R.C. § 2903.04
Baldwin's Ohio Revised Code Annotated Currentness
Title XXIX. Crimes--Procedure (Refs & Annos)'9wChapter 2903. Homicide and AssaultmHomicide
42903.04 Involuntary nianslaughter
(A) No person shall cause the death of another or the unlawful termination of another'spregnancy as a proximate result of the offender's committing or attempting to conunit a felony.
.(B) No person shall cause the death of another or the unlawful termination of another'spregnancy as a proximate result of the offender's committing or attempting to commit amisdemeanor of any degree, a regulatory offense, or a minor misdemeanor other than a violationof any section contained in Title XLV of the Revised Code that is a minor misdemeanor andother than a violation of an ordinance of a municipal corporation that, regardless of the penaltyset by ordinance for the violation, is substantially equivalent to any section contained in TitleXLV of the Revised Code that is a minor misdemeanor.
(C) Whoever violates this section is guilty of involuntary manslaughter. Violation of division (A)of this section is a felony of the first degree. Violation of division (B) of this section is a felonyof the third degree.
(D) If an offender is convicted of or pleads guilty to a violation of division (A) or (B) of thissection and if the felony, misdemeanor, or regulatory offense that the offender committed orattempted to comnlit, that proximately resulted in the death of the other person or the unlawfultermination of another's pregnancy, and that is the basis of the offender's violation of division(A) or (B) of this section was a violation of division (A) or (B) of section 4511.19 of the RevisedCode or of a substantially equivalent municipal ordinance or included, as an element of thatfelony, misdemeanor, or regulatory offense, the offender's operation or participation in theoperation of a snowmobile, locomotive, watercraft, or aircraft while the offender was under theinfluence of alcohol, a drug of abuse, or alcohol and a drug of abuse, both of the following apply:
(1) The court shall impose a class one suspension of the offender's driver's or commercialdriver's license or permit or nonresident operating privilege as specified in division (A)(1) of
sectiom4510:02 of the Revised Code.
(2) The court shall impose a mandatory prison term for the violation of division (A) or (B) of thissection from the range of prison terms authorized for the level of the offense under section
2929.14 of.the Revised Code.
(2002 S.123; eff:1-1-04; 1999 S 107, eff. 3-23-00; 1996 S 269,.eff. 7-1-96; 1996 S 239, eff: 9-6-96; 1995 S 2; eff. 7-1-96; 1994 H 236, eff: 9-29-94; 1993 S 62, 4, eff. 9-1-93; 1992 S 275;1982 H 269, § 4, S. 199; 1972 H 511)
UNCODIFIED LAW
1996 S 239, § 4: See Uncodified Law under RC 2903.09.
R.C. § 2903.211
Baldwin's Ohio Revised Code Annotated Currentness
Title XXIX. Crimes--Procedure (Refs & Annos)gChapter 2903. Homicide and Assault
'SGIMenacing; Stalkingn12903.211 Menacing by stalking (later effective date)
<Note: See also preceding version of this section witli earlier effective date.>
(A)(1) No person by engaging in a pattem of conduct shall knowingly cause another person tobelieve that the offender will cause physical hann to the other person or cause mental distress tothe other person:
(2) No person, through the use of any electronic method of remotely transferring information,including, but not limited to, any computer, computer network, computer program, or computersystem, shall post a message with purpose to urge or incite another to commit a violation ofdivision (A)(1) of this section.
(3) No person, with a sexual motivation, shall violate division (A)(1) or (2) of this section.
(B) Whoever violates this section is guilty of inenacing by stalking.
(1) Except as otherwise.provided in divisions (B)(2) and (3) of this section, menacing by stalkingis a misdemeanor of the first degree.
(2) Menacing by stalking is a felony of the fourth degree if any of the following applies:
(a) The offender previously has been convicted of or pleaded guilty to a violation of this sectionor a violation of section 2911.211 of the Revised Code.
(b) In committing the offense under division (A)(1) , (2), or (3) of this section, the offender madea threat of physical harm to or against the victim, or as a result of an offense committed underdivision (A)(2) or (3) of this section, a third person induced by the offender's posted messagemade a threat of physical harm to or against the victim.
A-22
(c) In committing the offense under division (A)(1), (2), or (3) of this section, the offendertrespassed on the land or premises where the victim lives, is employed, or attends school, or as aresult of an offense committed under division (A)(2) or (3) of this section, a third person inducedby the offender's posted message trespassed orrthe land or premises where the victim lives, isemployed, or attends school.
(d) The victim of the offense is a minor.
(e) The offender has a history of violence toward the victim or any other person or a history ofother violent acts toward the victim or any other person.
(f) While comnritting the offense under division (A)(1) of this section or a violation of division(A)(3) of this section based on conduct in violation of division (A)(1) of this section, theoffender had a deadly weapon on or about the offender's person or under the offender's control.Division (B)(2)(f) of this section does not apply in detemiining the penalty for a violation ofdivision (A)(2) of this section or a violation of division (A)(3) of this section based on conduct inviolation of division (A)(2) of thissection.`'
(g) At the time of the commission of the offense, the offender was the subject of a protectionorder issued under section 2903.213 or 2903.214 of the Revised Code, regardless of whether theperson to be protected under the order is the victim of the offense or another person.
(h) In committing the offense under division (A)(1), (2), or (3) of this section, the offendercaused serious physical harm to the premises at which the victim resides, to the real property onwhich that premises is located, or to any personalproperty located on that preniises, or, as aresult of annffense committed under division (A)(2) afthis section or an offense conunittedunder division (A)(3) of this section based on a violation of division (A)(2) of this section; a thirdperson induced by the offender's posted message caused serious physical harm to that premises,that real property, or any personal property on that premises.
(i) Prior to committing the offense, the offender had been determined to represent a substantialrisk of physical harm to others as manifested by evidence of then-recent homicidal or otherviolent behavior, evidence of then-recent threats that placed another in reasonable fear of violentbehavior and serious physical harm, or other evidence of then-present dangerousness.
(3) If the victim of the offense is an officer or employee of a public children services agency or aprivate child placing agency and the offense relates to the officer's or employee's performance oranticipated performance of official responsibilities or duties, menacing by stalking is either afelony of the fifth degree or, if the offender previously has been convicted of or pleaded guilty to
an offense of violence, the victim of that prior offense was an officer or employee of a publicchildren services agency or private child placing agency, and that prior offense related to theofficer's or employee's performance or anticipated performance of official responsibilities orduties, a felony of the fourth degree.
(C) Section2919.271 of the Revised Code applies in relation to a defendant charged with aviolation of this section.
(D) As used in this section:
(1) "Pattern of conduct" means two or more actions or incidents closely related in time, whetheror not there has been a prior conviction based on any of those actions or incidents. Actions orincidents that prevent, obstruct, or delay the performance by a public official, firefighter, rescuer,emergency medical services person, or emergency facility person of any authorized act withinthe public official's, firefighter's, rescuer's, emergency medical services person's, or emergencyfacility person's official capacity, or the posting of messages or receipt of informafion or datathrough the use of an electronic method of remotely transferring information, including, but notlimited to, a computer, computer network, computer program, computer system, orteleconununications device, may constitute a"pattern of conduct."
(2) "Mental distress" means any of the following:
(a) Any mental illness or condition that involves some temporary substantial incapacity;
(b) Any mental ilhiess or condition that would normally require psychiatric treatment,psychological treatment,.or other mental health services, whether or not any person requested orreceived psychiatric treatment, psychological treatment, or other mental health services.
(3) "Emergency medical services person" is the singular of "emergency medical servicespersonnel" as defined in section 2133.21 of the Revised Code.
(4) "Emergency facility person" is the singular of "einergency facility persormel" as defined insection 2909.04 of the Revised Code.
(5) "Public official" has the same meaning as in section 2921.01 of the Revised Code.
A-24
(6) "Computer," "computer network," "computer program," "computer system," and
"telecommunications device" have the same meanings as in section 2913.01 of the Revised
Code.
(7) "Post a message" means transferring, sending, posting, publishing, disseminating, orotherwise communicating, or attempting to transfer, send, post, publish, disseminate, orotherwise communicate, any message or infonnation, whether truthful or untruthful, about anindividual, and whether done under one's owmname, under the name of another, or whileimpersonating another.
(8) "Third person" means, in relation to conduct as described in division (A)(2) of this section, anindividual who is neither the offender nor the victim of the conduct.
(9) "Sexual motivation" has the same meaning as in section 2971.01 of the Revised Code.
(E) The state does not need to prove in a prosecution under this section that a person requested orreceived psychiatric treatment, psychological treatment, or other mental health services in orderto show that the person was caused mental distress as described in division (D)(2)(b) of thissection.
(F)(1) This section does not apply to a person solely because the person provided access orconnection to or from an electronic inethod of remotely transferring information not under thatperson's control, including having provided capabilities that are incidental toproviding access orconnection to or from the electronic method of remotely transferring the infonnation, and that donot include the creation of the content of the material that is the subject of the access orconnection. In addition, any person providing access or connection to or from a}i electronicmethod of remotely transferring information not under that person's control shall not be liable forany action voluntarily talcen in good faith to block the receipt or transmission through its serviceof any infonnation that it believes is, or will be sent, in violation of this section.
(2) Division (F)(1) of this section does not create an affirmative duty for any person providingaccess or connection to or from an electronic method of remotely transferring information notunder that person's control to block the receipt or transmissiou through its service of anyinfonnation that it believes is, or will be sent, in violation of this section except as otherwise
provided by law.
(3) Division (F)(1) of this section does not apply to a person who conspires with a personactively involved in the creation or knowing distribution of material in violation of this section orwho knowingly advertises the availability of material of that nature.
(2007 S 10, eff. 1-1-08: 2003 S 8, eff. 8-29-03; 2001 S 40. eff. 1- 25-02; 2000 H 412, eff. 4-10-O1; 1999 H 202, ^ 3, eff. 3-10-00; 1999 H 137, eff. 3-10-00; 1998 S 215, eff. 3-30-99; 1995 S 2,eff. 7-1-96; 1992 H 536, eff. 11-5-92)
<Note: See also preceding versioii of this section with earlier effective date.>
R.C. § 2919.25
Baldwin's Ohio Revised Code Annotated Currentness
Title XXIX: Crimes--Procedure'°MChapter 2919. Offenses Against The Family (Refs & Amios)%Domestic Violence*2919.25 Domestic violence
(A) No person shall lcnowingly cause or attempt to cause physical hann to a family or household
member.
(B) No person shall recklessly cause serious physical hann to a family or household member..
(C) No person, by threat of force, shall knowingly cause a family or household member tobelieve that the offender will cause imminent physical harm to the family or householdmember.
(D)(1) Whoever violates this section is guilty of domestic violence.
(2) Except as otherwise provided in division (D)(3) or (4) of this section, a violation of division(C) of this section is a misdemeanor of the fourth degree, and a violation of division (A) or (B) ofthis section is a misdemeanor of the first degree.
(3) Except as otherwise provided in division (D)(4) of this section, if the offender previously haspleaded guilty to or been convicted of domestic violence, a violation of an existing or fonnermunicipal ordinance or law of this or any other state or the United States that is substantiallysimilar to domestic violence, a violation of section2903.142909.06, 2909:07 2911.12,2911.211, or 2919.22 of the Revised Code if the victim of the violation was a family orhousehold member at the time of the violation, a violation of an existing or former municipalordinance or law of this or any other state or the United States that is substantially similar to anyof those sections if the victim of the violation was a family or household member at the time ofthe commission of the violation, or any offense of violence if the victim of the offense was afamily or household member at the time of the commission of the offense, a violation of division(A) or (B) of this section is a felony of the fourth degree, and a violation of division (C) of thissection is a misdemeanor of the second degree.
(4) If the offender previously has pleaded guilty to or been convicted of two or more offenses ofdomestic violence or two or more violations or offenses of the type described in division (D)(3)of this section involving a person who was a family or household member at the time of the
A-27
violations or offenses, a violation of division (A) or (B) of this section is a felony of the thirddegree, and a violation of division (C) of this section is a misdemeanor of the first degree.
(E) Notwithstanding any provision. of law to the contrary, no court or unit of state or localgovenunent shall charge any fee, cost, deposit, or money in connection with the filing of chargesagainst a person alleging that the person violated this section or a municipal ordinancesubstantially similar to this section or in connection with the prosecution of any charges so filed.
(F) As used in this section and sections 2919.251 and 2919.26 of the Revised Code:
(1) "Fainily or household member" means any of the following:
(a) Any of the following who is residing or has resided with the offender:
(i) A spouse, a person living as a spouse, or a former spouse of the offender;
(ii) A parent or a child of the offender, or another person related by consanguinity or affinity to
the offender;
(iii) A parent or a child of a spouse, person living as a spouse, or former spouse of the offender,or another person related by consanguinity or affinity to a spouse, person living as a spouse, orformer spouse of the offender.
(b) The natural parent of any child of wliom the offender is the other natural parent or is the
putative other natural parent.
(2) "Person living as a spouse" means a person who is living or has lived with the offender in acommon law marital relationship, who otherwise is cohabiting with the offender; or whootherwise has cohabited with the offender within five years prior to the date of the allegedcommissiori of the act in question.
(2003 S 50, eff. 1-8-04; 2002 H 548, eff. 3-31-03; 2002 H 327, eff. 7-8-02; 1997 H 238, eff. 11-5- 97;1997 S 1, eff. 10-21-97; 1995 S 2, eff. 7-1-96; 1994 H 335, eff. 12-9-94; 1992 H 536, eff.11-5-92; 1990 S 3; 1988 H 172; 1987 S 6; 1984 H 587; 1980 H 920; 1978 H 835)
A-28
R.C. § 2911.11
Baldwin's Ohio Revised Code Annotated Currentness
Title XXIX: Crimes--Procedure (Refs & Anhos)KfMChapter 2911. Robbery, Burglary, and Trespass (Refs & Annos)"`IgBurglary42911.11 Aggravated burglary
(A) No person, by force, stealth, or deception, shall trespass in an occupied structure or in aseparately secured or separately occupied portion of an occupied structure, when another personother than an accomplice of the offender is present, with purpose to commit in the structure or inthe separately secured or separately occupied portion of the structure any criminal offense, if anyof the following apply:
(1) The offender inflicts, or attempts or threatens to inflict physical harm on another;
(2) The offender has a deadly weapon or dangerous ordnance on or about the offender's person orunder the offender's control.
(B) Whoever violates this section is guilty of aggravated burglary, a felony of the first degree.
(C) As used in this section:
(1) "Occupied structure" has the same meaning as in section 2909.01 of the Revised Code.
(2) "Deadly weapon" and "dangerous ordnance" have the same meanings as in section 2923.11of the Revised Code.
(1996 S 269, eff. 7-1-96; 1995 S 2, eff: 7-1-96; 1983 S 210, eff. 7-1- 83; 1982 H 269, § 4, S 199;1972 H 511)
HISTORICAL AND STATUTORY NOTES
R.C. § 2921.04
Baldwin's Ohio Revised Code Annotated Currentness
Appendix to '1'itle XX1X Crimes--Procedure (Law Effective Prior to July 1, 1996) -Refs &Annos"®Chauter 2921. Offenses Against Justice and Public Administration
"gBriber;, Intimidation, and Retaliation02921.04Intimidation of crime victim orwitness
(A) No person shalll:no-Mngly atteinpt to intimidate or hinder the victim of a crime iirthe filing
or prosecution of criniinal charges, or a witness in a criminal case in the discharge of his duty.
(B) No person, knowingly and by force or by unlawful threat of hann to any person or property,
shall attempt to influence, intimidate; or hinder the victim of a crime in the filing or prosecution
of criminal charges, or a witness in a criminal case in the discharge of his duty.
(C) Division (A) of this section does not apply to any person who is. attempting to resolve adispute pertaining to the alleged commission of a criminal offense, either prior to or subsequentto the filing ofa complaint, or who is attempting to arbitrate or assist in the conciliation of anysuCh dispute, either prior to or subsequent to the filing of a complaint.
(D) Whoever violates this section is guilty of intimidation of a crime victim or witness.
Violation of division (A) of this section is a misdemeanor of the first degree. Violation of
division (B) of this section is a felony of the third degree.
(1984 S 172, eff. 9-26-84)
R.C. § 2921.04, OH ST § 2921.04
A-30
R.C. § 2921.12
Baldwin's Ohio Revised Code Annotated Currentness
Title XXIX. Crimes--Procedure"®Chapter 2921. Offenses Against Justice and Public Administration (Refs & Annos)
RVejmyrt2921.12 Tampering with evidence
(A) No person, knowing that an official proceeding or investigation is in progress, or is about tobe or likely to be instituted, shall do any of the following:
(1) Alter, destroy, conceal, or remove any record, document, or thing, with purpose to impair itsvalue or availability as evidence in such proceeding or investigation;
(2), Make, present, or use any record, document, or thing, knowing it to be false and with purposeto mislead a public official who is or may be engaged in such proceeding or investigation, orwith purpose to corrupt the outcome of any such proceeding or investigation.
(B) Whoever violates this section is guiltyof tampering with evidence, a felony of the third
degree.
(1972 H 511, eff. 1-1-74)
HISTORICAL AND STATUTORY NOTES
Ed. Note: Former 2921.12 repealed by 1972 H 511, eff. 1-1-74; 1953 H 1; GC 12491; see now2909.07 for provisions analogous to former 2921.12.
R.C. § 2929.04
Baldwin's Ohio Revised Code Annotated Currentness
Title XXIX. Crimes--ProcedureRWChapter 2929. Penalties and Sentencing (Refs & Annos)"tlPenalties for Murderm ►2929.04 Criteria for imposing death or imprisonment for a capital offense
(A) Imposition of the death penalty for aggravated murder is precluded unless one or more of thefollowing is specified in the indictment or count in the indictment pursuant to section 2941.14 ofthe Revised Code arnd proved beyond a reasonable doubt:
(1) The offense was the assassination of the president of the United States or a person in line ofsuccession to the presidency, the governor or lieutenant governor of this state, the president-elector vice president-elect of the United States, the governor-elect or lieutenant govemor-eledt of thisstate, or a candidate for any of the offices described in this division. For purposes of thisdivision, a person is a candidate if the person has been nominated for election according to law,if the person has filed a petition or petitions according to law to have the person's name placedon the ballot in a primary or general election, or if the person campaigns as a write-in candidatein a primary or general election.
(2) The offense was committed for hire.
(3) The offense was committed for the purpose of escaping detection, apprehension, trial, orpunislnnent for another offense connnitted by the offender.
(4) The offense was committed while the offender was under detention or while the offender wasat large after having broken detention. As used in division (A)(4) of this section, "detention" hasthe same meaning as in section 2921.01 of the Revised Code except that detention does notinclude hospitalization, institutionalization, or confinement in a mental health facility or mentalretardation and developmentally disabled facility unless at the time of the commission of theoffense either.of the following circumstances apply:
(a) The offender was in the facility as a result of being charged with a violation of a section ofthe Revised Code.
(b) The offender was under detention as a result of being convicted of or pleading guilty to aviolation of a section of the Revised Code.
A-32
(5) Prior to the offense at bar, the offender was convicted of an offense. an essential element ofwhich was the purposeful killing of or attempt to kill another, or the offense at bar was part of acourse of conduct involving the purposeful killing of or attempt to kill two or more persons bythe offender.
(6) The victim of the offense was a law enforcement officer, as defined in section 2911.01 of theRevised Code; whom the offender had reasonable cause to know or knew to be a lawenforcement officer as so defined, and either the victim, at the time of the commission of theoffense, was engaged in the victim's duties, or it was the offender's specific purpose to kiil a lawenforcement officer as so defined.
(7) The offense was connnitted while the offender was committing, attempting to commit, orfleeing immediately after committing or attempting to connnit kidnapping, rape, aggravatedarson, aggravated robbery, or aggravated burglary, and either the offender was the principaloffender in the commission of the aggravated rnurder or, if not the principal offender, convnittedthe aggravated murder with prior calcnlation and design.
(8), The victim of the aggravated murder was a witness to an offense who was purposely killed toprevent the victim's testimony in any criminal proceeding and the aggravated murder was notcommitted during the commission, attempted commission, or flight immediately after thecommission or attempted commission of the offense to which the victim was a witness, or thevictim of the aggravated murder was a witness to an offense and was purposely Ialled inretaliation for the victim's testimony in any criminalproceeding.
(9) The offender, in the commission of the offense, purposefully caused the death of another whowas under thirteen years of age at the time of the commission of the offense, and either theoffender was the principal offender in the connnission of the offense or, if not the principaloffender, committed the offense with prior calculation and design.
(10) The offense was committed while the offender was commitfing, attempting to commit, orfleeing immediately after committing or attempting to commit terrorism.
(B) If one or more of the aggravating circumstances listed in division (A) of this section isspecified in the indictment or count in the indictment and proved beyond a reasonable doubt, andif the offender did not raise the matter of age pursuant to section 2929.023 of the Revised Codeor if the offender, after raising the matter of age, was found at trial to have been eighteen years ofage or older at the time of the commission of the offense, the court, trial jury, or panel ofthi•eejudges shall consider, and weigh against the aggravating circumstances proved beyond a
reasonable. doubt, the nature and circuinstances of the offense, the history, character, andbackground of the offender, and all of the following factors:
(1) VWhether the victim of the offense induced or facilitated it;
(2) Whether it is unlikely that the offense would have been committed, but for the fact that theoffender was under duress, coercion, or strong provocation;
(3) Whether, at the time of committing the offense, the offender, because of a mental disease ordefect, lacked substantial capacity to appreciate the criminality of the offender's conduct or toconforni the offender's conduct to the requirements of the law;
(4) The youth of the offender;
(5) The offender's lack of a significant history of prior criminal convictions and delinquencyadjudications;
(6) If the offender was a participant in the offense but not the.principal offender, the degree ofthe offender's participation in the offense and the degree of the offender's participation in the actsthat led to the death of the victim;
(7) Any other factors that are relevant to the issue of whether the offender should be sentenced todeath.
(C) The defendant shall be given great latitude in the presentation of evidence of the factorslisted in division (B) of this section and of any other factors in mitigation of the imposition of thesentence of death.
The existence of any of the mitigating factors listed in division (B) of this section does notpreclude the imposition of a sentence of death on the offender but shall be weighed pursuant todivisions (D)(2) and (3) of section 2929.03 of the Revised Code by the trial court, trial jury, orthe panel ofthree judges against the aggravating circumstances the offender was found guilty ofcommitting.
(2002 S 184, ef£ 5-15-02; 1998 S 193, eff. 12-29-98; 1997 H 151, eff. 9-16-97; 1997 S 32, eff.8-6-97; 1981 S 1, eff. 10-19-81; 1972 H 511)
HISTORICAL AND STATUTORY NOTES
Amendment Note: 2002 S 184 added new division (A)(10).
Crim. R. Rule 8
Baldwin'sOhio Revised Code Annotated Currentness
Rulesof Criminal Procedure (Refs & Aimos)*Crim R 8 Joinder of offenses and defendants
(A) Joinder of offenses
Two or more offenses may be charged in the same indictment, information or complaint in aseparate count for each offense if the offenses charged, whether felonies or misdemeanors orboth, are of the same or similar character, or are based on the same act or transaction, or arebased on two or more acts or transactions connected together or constituting parts of a commonscheme or plan, or are part of a course of criminal conduct.
(B) Joinder of defendants
Two or more defendants may be charged in the same indictment, information or complaint ifthey are alleged to have participated in the same act or transaction or in the same series of acts ortransactions constituting an offense or offenses, or in the same course of criminal conduct. Suchdefendants may be charged in one or more counts together or separately, and all of thedefendants need not be charged in each count:
(Adopted eff. 7-1-73)
Crim. R. Rule 12
Baldwin's Ohio Revised Code Annotated Currentness
Rules of Criminal Procedure (Refs & Annos)v ►Crim R 12 Pleadings and motions before trial: defenses and objections
(A) Pleadings and motions
Pleadings in criminalproceedings shall be the complaint, and the indictment or information, andthe pleas of not guilty, not guilty by reason of insanity, guilty, and no contest. All other pleas,deinurrers, and motions to quash, are abolished. Defenses and objections raised before trialwhich heretoforecould have beemraised by one or more of them shall be raised only by motionto dismiss or to grant appropriate relief, as provided iri these rules.
(B) Filing with the court def'med
The filing of documents with the court, as required by these rules, shall be made by filing thetirwith the clerk of court, except that the judge may permit the documents to be filed with thejudge, in which event the judge shall note the filing date on the documents and transmit them tothe clerk: A court may provide, by local rules adopted pursuant to the Rules of Superintendence,for the filing of documents by electronic means. If the court adopts such local rules, they shallinclude all of the following:
(1) The complaint, if permitted by local rules to be filed electronically, shall comply with Crim.R.3.
(2) Any signature on electronically transmitted documents shall be considered that of theattomeyor party it purports to be for all purposes. If it is established that the documents weretransmitted without authority, the court shall order the filing stricken.
(3) A provision shall specify the days and hours during which electronically transmitteddocuments will be received by the court, and a provision shall specify when documents receivedelectronically will be considered to have been filed.
(4) Any document filed electronically that requires a filing fee may be rejected by the clerk ofcourt unless the filer has complied with the mechanism established by the court for the paymentof filing fees.
(C) Pretrial motions
Prior to trial, any party may raise by motion any defense, objection, evidentiary issue, or requestthat is. capable of detennination without the trial of the general issue. The following must beraised before trial.•
(1) Defenses and objections based on defects in the institution of the prosecution;
(2) Defenses and objections based on defects in the indictment, information, or complaint (otherthan failure to show jurisdiction in the court or to charge an offense, which objections shall benoticed by the court at any time during the pendency of the proceeding);
(3).Motions to suppress evidence, including but not limited to statements and identificationtestimony, on the ground that it was illegally obtained. Such motions shall be filed in the trialcourt only:
(4) Requests for discovery under Crim. R. 16;
(5) Requests for severance of charges or defendants under Crim. R. 14.
(D) Motion date
All pretrial motions except as provided in Crim. R. 7(E) and 16(F) shall be made within thirty-five days after arraignment or seven days before trial, whichever is earlier. Thecourt in theinterest of justice may extend the time for making pretrial motions.
(E) Notice by the prosecuting attorney of the intention to use evidence
(1) At the discretion of the prosecuting attorney. At the arraignment or as soon thereafter as ispracticable, the prosecuting attorney may give notice to the defendant of the prosecuting .attomey's intention to use specified evidence at trial, in order to afford the defendant anopportunity to raise objections to such evidence prior to trial under division (C)(3) of this rule.
(2) At the request of the defendant. At the arraignment or as soon thereafter as is practicable, thedefendant, in order to raise objections prior to trial under division (C)(3) of this rule, may requestnotice of the prosecuting attorney's intention to use evidence in chief at trial, which evidence thedefendantis entitled to discover under Crim. R. 16.
(F) Ruling on motion
The court may adjudicate a motion based upon briefs, affidavits, the proffer oftestimony.andexhibits, a hearing, or other appropriate means.
A motion made pursuant to divisions (C)(1) to (C)(5) of this rule shall be determined before trial.Any other motion made pursuant to division (C) of this rule shall be determined before trialwhenever possible. Where the court defers ruling on any motion made by the prosecutingattorrieybefore trial and makes a raling adverse to the prosecuting attorney after thecommencement of trial, and the ruling is appealed pursuant to law with the certification requiredby division (K) of this rule, the court shall stay the proceedings without discharging the jury or
dismissing the charges.
Where factual issues are involved in determining a motion, the court shall state its essential
findings on the record.
(G) Return of tangible evidence
Where a motion to suppress tangible evidence is granted, the court upon request of the defendantshall order the property retuined to the defendant if the defendant is entitled to possession of theproperty. The order shall be stayed pending appeal by the state pursuant to division (K) of this
rule.
(H) Effect of failure to raise defenses or objections
Failure by the defendant to raise defenses or objections or to make requests that must be madeprior to trial, at the time set by the court pursuant to division (D) of this rule, or prior to anyextension of tnne made by the court, shall constitute waiver of the defenses or objections, but thecourt for good cause shown may grant relief from the waiver.
(I) Effect of plea of no contest
A-39
The plea of no contest does not preclude a defendant from asserting upon appeal that the trialcourt prejudicially erred in ruling on a pretrial motion, including a pretrial motion to suppress
evidence.
(J) Effect of determination
If the court grants a mofion to dismiss based on a defect in the institution of the prosecution or inthe indictment, information, or complaint, it may also order that the defendant be held in custodyor that the defendant's bail be continued for a specified time not exceeding fourteen days,pending the filing of a new indictment, information, or complaint. Nothing in this rule shallaffect any statute relating to periods of limitations. Notbing in this rule shall affect the state'snght to appeal an adverse ruling on a motion under divisions (C)(1) or (2) of this rule, when the
motion raises issues that were formerly raised pursuant to a motion to quash, a plea in abatement,a demurrer, or a motion in arrest of judgment.
(K) Appeal by state
Whenthe state takes an appeal as provided by law from an order suppressing or excludingevidence, the prosecuting attoiney shall certify that both of the following apply:
(1) the appeal is not taken for the purpose of delay;
(2) the ruling on the motion or motions has rendered the state's proof with respect to the pendingcharge so weak imits entirety that any reasonable possibility of effective prosecution has been
destroyed.
The appeal from an order suppressing or excluding evidence shall not be allowed unless thenotice of appeal and the certification by the prosecuting attorney are filed with the clerk of thetrial court within seven days after the date of the entry of the judgment or order granting themotion. Any appeal taken under this rule shall be prosecuted diligently.
If the defendant previously has not been released, the defendant shall, except in capital cases, bereleased from custody on his or her own recognizance pending appeal when the prosecutingattorney files the notice of appeal and certification.
This appeal shall take precedence over all other appeals.
A-40
Crim. R. Rule 14
Baldwin's Ohio Revised Code Annotated Currentness
Rules of Criminal Procedure (Refs & Annos)*Crim R 14 Relief from prejudicial joinder
If it appears that a defendant or the state is prejudiced by a joinder of offenses or of defendants inan indictment, information, or complaint, or by such joinder for trial together of indictments,informations or complaints, the court shall order an election or separate trial of counts,. grant aseverance of defendants, or provide such other relief as justice requires. In ruling on a motion bya defendant for severance, the court shall order the prosecuting attorney to deliver to the court forinspection pursuant to Rule 16(B)(1)(a) any statements or confessions made by the defendantswhich the state intends to introduce in evidence at the trial.
When two or more persons are jointly indicted for a capital offense, each of such persons shall betried separately, unless the courtorders the defendants to be tried jointly, upon application by theprosecuting attorney or one or more of the defendants, and for good cause shown.
(Adopted eff. 7-1-73)
CROSS REFERENCES
A-42
Crim. R. Rule 32
Baldwin's Ohio Revised Code Annotated Currentness
Rules of Criminal Procedure4Crim R 32 Sentence
(A) Imposition of sentence
Sentence shall be imposed without unnecessary delay. Pending sentence, the court may committhe defendant or continue or alter the bail. At the time of imposing sentence, the court shall do all
of the following:
(1) Afford counsel an opportunity to spealc on behalf of the defendant and address the defendantpersonally aiid ask if he or she wishes to make a statement in his or her own behalf or presentany information in mitigation of punishment.
(2) Afford the prosecuting attorney an opportunity to speak;
(3) Afford the victimthe rights provided by law;
(4) In serious offenses, state its statutory findings and give reasons supporting those findings, if
appropriate.
(B) Notification of right to appeal
(1) After imposing sentence in a serious offense that has gone to trial, the court shall advise the
defendant that the defendant has a right to appeal the conviction.
(2) After imposing sentence in a serious offense, the court shall advise the defendant of thedefendant's right, where applicable, to appeal or to seek leave to appeal the sentence imposed.
(3) If a right to appeal or a right to seek leave to appeal applies under division (B)(1) or (B)(2) ofthis rule, the court also shall advise the defendant of all of the following:
(a) That if the defendant is unable to pay the cost of an appeal; the defendant has the right toappeal without payment;
(b) That if the defendant is unable to obtain counsel for an appeal, counsel will be appointedwithout cost;
(c) That if the defendant is unable to pay the costs of documents necessary to an appeal, thedocuments will be provided without cost;
(d) That the defendant has a right to have a notice of appeal timely filed on his or her behalf.
Upon defendant's request, the court shall forthwith appoint counsel for appeal.
(C) Judgment
render judgnient accordingly. The judge shall sign the judgment and the clerlc shall enter it on thejournal..A judgment is effective only when entered on the joumal by the clerk.
A judgment of conviction shall set forth the plea, the verdict or findings, and the sentence. If thedefendant is found not guilty or for any other reason is entitled to be discharged, the court shall
(Adopted eff. 7-1-73; amended eff. 7-1-92, 7-1-98, 7-1-04)
A-44
Crim. R. Rule 52
Baldwin's Ohio Revised Code Annotated Currentness
Rules of Criminal ProcedurertCrim R 52 Harmless error and plain error
(A) Harmless error
Any error, defeot, irregularity, or. vatiance which does not affect substantial rights shall be
disregarded.
(B) Plain error
Plain errors or defects affecting substantial rights may be noticed although they were not brought
to the attention of the court.
(Adopted eff. 7-1-73)
Evid. R. Rule 404
Baldwin's Ohio Revised Code Annotated Currentness
Ohio Rules of Evidence (Refs & Armos)'%Article IV. Relevancy and Its Limits*Evid R 404 Character evidence not admissible to prove conduct; exceptions; other crinies
(A) Character evidence generally. Evidence of a person's character or a trait of character is notadmissible for the purpose of proving action in conformity therewith on a particular occasion,subject to the following exceptions;
(1) Character of accused. Evidence of a pertinent trait of character offered by an accused, or bythe prosecution to rebut the same is admissible; however, in prosecutions for rape, gross sexualimposition, and prostitution, the exceptions provided by statute enacted by theGeneral Assemblyare applicable.
(2) Character of victim. Evidence of a pertinent trait of character of the victim of the crimeoffered by an accused, or by the prosecution to rebut the same, or evidence of a character trait ofpeacefulness of the victim offered by the prosecution in a homicide case to rebut evidence thatthe victim was the first aggressor is admissible; however, in prosecutions for rape, gross sexualimposition, and prostitution, the exceptions provided by statute enacted by the General Assentbly
are applicable.
(3) Character of witness. Evidence of the character of a witness on the issue of credibility is
admissible as provided in Rules 607, 608, and 609.
(B) Other crimes, wrongs or acts. Evidence of other crimes, wrongs, or acts is not admissibleto prove the character of a person in order to show action in conformity therewith. It may,however, be admissible for other purposes, such as proof of motive, opportunity, intent,preparation, plan, lrnowledge, identity, or absence of mistake or accident.
(Adopted eff. 7-1-80; amended eff. 7-1-07)
STAFF NOTES
Evid. R. Rule 601
Baldwin's Ohio Revised Code Annotated Currentness
Ohio Rules of Evidence (Refs & Annos)%Article VI. WitnessesP ►Evid R 601 General rule of competency
Every person is competent to be a witness except:
(A) Those of unsound mind, and children under ten years of age, who appear incapable ofreceiving just impressions of the facts and transactions respecting which they are examined, or ofrelating them.truly.
(B) A spouse testifying against the other spouse charged with a crime except when either of thefollowing applies:
(1).a crime against the testifying spouse or a child of either spouse is charged;
(2) the testifying spouse elects to testify.
(C) An officer, while on duty for the exclusive or main purpose of enforcing traffic laws,arresting or assisting in the arrest of a person charged with a traffic violation punishable as amisdemeanor where the officer at the time of the arrest was not using a properly marked motorvehicle as defined by statute or was not wearing a legally distinctive uniform as defined bystatute.
(D) A person giving expert testimony on the issue of liability in any claim asserted in any civilaction against a physician, podiatrist, or hospital arising out of the diagnosis, care, or treatmentof any person by a physician or podiatrist, unless the person testifying is licensed to practicemedicine and surgery, osteopathic medicine and surgery, or podiatric medicine and.surgerybythe state medical board or by the licensing authority of any state, and unless the person devotes atleast one-half of his or her professional time to the active clinical practice in his or her field oflicensure, or to its instruction in an accredited school. This division shall not prohibit othermedical professionals who otherwise are competent to testify under these rules from givingexpert testimony on the appropriate standard of care in their own profession in any claimasserted in any civil action against a physician, podiatrist, medical professional, or hospitalarising out of the diagnosis, care, or treatment of any person.
(E) As otherwise provided in these rules.
(Adopted eff. 7-1-80; amended eff. 7-1-91)
STAFF NOTES