ir [^^^^^e id - ohio supreme court no. 2011-0857 in the supreme court of ohio appeal from the...
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NO. 2011-0857
IN THE SUPREME COURT OF OHIO
APPEAL FROMTHE CUYAHOGA COUNTY COURT OF COMMON PLEAS
NO. 542119
STATE OF OHIO,
Plaintiff-Appellee
-vs-
DENNY OBERMILLER,
Defendant-Appellant
MERIT BRIEF OF APPELLEE STATE OF OHIO
CAPITAL CASE
Counsel for Defendant-Appellant
OFFICE OF THE OHIOPUBLIC DEFENDER
Counsel for Plaintiff- Appellee
WILLIAM D. MASONCUYAHOGA COUNTY PROSECUTOR
LINDA E. PRUCHA (004o689)JENNIFER A. PRILLO (oo73744)SHAWN P. WELCH (0085399)Assistant State Public Defenders25o E. Broad Street, Suite 1400Columbus, Ohio 43215(614)466-5394(614) 644-0708 (Fax)
IR [^^^^^E IDSEP 0 4 2012
CLERK OF COURTSUPREME COURT OF OHIO
SALEH S. AWADALLAH (oo63422)MARY H. McGRATH (0041381)MARGARET A. TROIA (0082084)Assistant Prosecuting AttorneysThe Justice Center, 9th Floor1200 Ontario StreetCleveland, Ohio 44113(216) 443-78oo(216)443-7602(Fax)
F ^ LEDSEP 04 2012
GLtEiK UF COURTSUPREME 10117 OF OHIO
TABLE OF CONTENTS
STATEMENT OF THE FACTS ............................................................................................. i
1. Summary of the case ..................................................................................................1
a. Relevant facts and procedural history . ................................................................. 3
2. Summary of indictment ............................................................................................ 5
3. Pre-trial hearings . ..................................................................................................... 7a. Hearing on Obermiller's motion to suppress oral statements .......................... 9
b. Post-suppression hearing pre-trials . .. .............................................................. 164. Trial date; Obermiller's waiver of a jury trial . .. ...................................................... 16
5. Obermiller's guilty pleas . ................... .................................................................... 236. R.C. 2945.o6 proceedings ...................................................................................... 24
a. Testimony of Candace Flagg ......................................................................... 28
b. Testimony of Maple Heights Police Officer Michael Gazer . ........................ 29
c. Testimony of Maple Heights Police Officer Brian Kevern ........................... 30
d. Testimony of Maple Heights Police Officer Kevin Pozek .............................30
e. Testimony of Special Agent Daniel Winterich, BCI . .....................................31
f. Testimony of BCI computer forensic specialist Natasha Branam . ..... ..........3i
g. Testimony of Gina Mikluscak, Obermiller's girlfriend . . .............................. 32h. Testimony of Denny Lykins, Obermiller's father ......................................... 35
i. Testimony of Vern Jordi, Mrs. Schneider's co-worker . ............................... 37j. Testimony of Stephen Samuel regarding car rental ..................................... 38
k. Testimony of Michael Rimar, Obermiller's employer .................................. 39
1. Discussion between the Panel and defense counsel regarding iack ofobjections and propriety of proceeding under R.C. 2945•o6• • •••••••••••••••••••••••••• 42m. Testimony of Jason Bartel, American Eagle Coin Shop . .......................... 43
n. Testimony of Dr. Jimmie Smith, Deputy Medical Examiner . ..................... 43
o. Testimony of Dr. Joseph Felo, Deputy Medical Examiner . ... ...................... 44p. Testimony of Lisa Przepyszny, Forensic Scientist . ...................................... 45
q. Testimony of Colonel Chad Dennis, Chief Deputy, Licking County SheriffsOffice . ................................................................................................:................ 46
r. Testimony of Detective Sergeant Chris Slayman, Licking County SheriffsOffice . ................................................................................................................. 47
s. Testimony of Fred Harvey, KeyBank investigator . ............ .......................... 48t. Introduction of prior conviction ................................................................... 49
u. Testimony of Lisa Moore, Forensic Scientist/DNA Analyst ........................ 49
i
v. Testimony of Dr. Nasir Butt, Supervisor, DNA Department ....................... 50
w. Testimony of Detective Allen Henderson, Maple Heights PoliceDepartment . . ...................................................................................................... 50x. Testimony of Dave Wozniak, Revol Wireless ............................................... 52
7. Conclusion of R.C. 2945•o6 Proceedings . ............................................................. 528. Panel's recall of witnesses ....................:................................................................. 54
a. Gina Mikluscak, Obermiller's girlfriend . .................................................. 54b. Natasha Branam, BCI computer forensic specialist ..........................:...... 58
c. Stacey Muzic, Obermiller's stepmother and aunt . ................................... 59
9. Panel's verdicts . ... .................................................................................................. 6o
io. Mitigation proceedings, State's merger° of counts; and Obermiller's waiver ofmitigation . ..................................................................................................................... 65ii. Sentencing hearing . ............................................................................................... 67
I.AW AND ARGUMENT ................... ................................................................................ 69
PROPOSITION OF LAW NO. 1: A DEFENDANT HAS ACONSTITUTIONAL RIGHT TO WAIVE COUNSEL AND REPRESENTHIMSELF WHEN THE WAIVER IS MADE KNOWINGLY,INTELLIGENTLY AND VOLUNTARILY. U.S. CONST. AMENDS. VI, XIV;OHIO CONST. ART. I¶¶ io, 16 .................................................................. 69
PROPOSITION OF LAW NO. 2: A CAPITAL DEFENDANT'S RIGHT TO ARELIABLE SENTENCE IS VIOLATED WHEN THE THREE JUDGEPANEL FAILS TO PROPERLY WEIGH AGGRAVATINGCIRCUMSTANCES AND MITIGATING FACTORS IN IMPOSING ASENTENCE OF DEATH. U.S. CONST. AMENDS. VII, XIV; OHIO CONST.ART. I¶¶ 9, i6 ............................................................................................. 72
PRnPOSTTTON OF LAW Nn_ q- THE DF.FF.NDANT'S RTGHTS TO AFAIR TRIAL, DUE PROCESS AND FREEDOM FROM CRUEL ANDUNUSUALLY PUNISHMENT ARE VIOLATED WHEN THE TRIALCOURT ELICITS AND ALLOWS THE PERVASIVE INTRODUCTION OFEVIDENCE WHICH IS IRRELEVANT, INADMISSIBLE AND UNFAIRLYPREJUDICIAL. U.Sr CONST. AMENDS. IV, V, VI, VII AND OHIOCONST. ART. I¶¶ 2, 5, 9, 16. OHIO R. EVID. 401, 403, 404. O.R.C. ¶¶2945•03, 2945.o6 .........................................................................................75
PROPOSITION OF LAW NO. 4: THE RIGHT TO THE EFFECTIVEASSISTANCE OF COUNSEL IS VIOLATED WHEN COUNSEL'SDEFICIENT PERFORMANCE RESULTS IN PREJUDICE TO THEDEFENDANT. U.S. CONST. AMENDS. VI, XIV; OHIO CONST. ART. I¶io . ................................................................................................................ 79
11
PROPOSITION OF LAW NO. 5: THE DEATH SENTENCE IMPOSED ONOBERMILLER WAS UNRELIABLE AND INAPPROPRIATE. U.S.CONST. AMENDS. VIII AND XIV; OHIO CONST. ART. I¶¶ 9 AND 16AND O.R.C. ¶ 2929.05 ................................................................................ 84
PROPOSITION OF LAW NO. 6: THE ACCUSED'S RIGHT TO DUEPROCESS IS VIOLATED WHEN THE CUMULATIVE EFFECT OFPROSECUTOR MISCONDUCT RENDER'S THE ACCUSED'S TRIALUNFAIR. U.S. CONST. AMEND. XIV; OHIO CONST. ART. I¶ i6.......... 86
PROPOSITION OF LAW NO. 8: THE INTRODUCTION OF ADEFENDANT'S STATEMENT MADE DURING A CUSTODIALINTERROGATION AND WITHOUT MIRANDA WARNINGS VIOLATESA CAPITAL DEFENDANT'S PROTECTION AGAINST SELF-INCRIMINATION AS WELL AS HIS RIGHTS TO A FAIR TRIAL, DUEPROCESS, AND A RELIABLE DETERMINATION OF GUILT ASGUARANTEED BY THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTHAMENDMENTS TO THE UNITED STATES CONSTITUTION ANDARTICLE I, ¶¶ 9, io, AND i6 OF THE OHIO CONSTITUTION . . ............. 92
PROPOSITION OF LAW NO. 9: OHIO'S DEATH PENALTY LAW ISUNCONSTITUTIONAL. OHIO REV. CODE ANN. ¶¶ 2903.01, 2929.02,2929.021, 2929.022, 2020.023, 2929.03, 2929.04, AND 2929.05 DO NOTMEET THE PRESCRIBED CONSTITUTIONAL REQUIREMENTS ANDARE UNCONSTITUTIONAL ON THEIR FACE AND AS APPLIED TOOBERMILLER. U.S. CONST. AMENDS. V, VI, VIII, AND XIV; OHIOCONST. ART. I, ¶¶ 2, 9, io, AND i6. FURTHER, OHIO'S DEATHPENALTY STATUTE VIOLATES THE UNITED STATES' OBLIGATIONSUNDER INTERNATIONAL LAW . ............................................................. 96
PROPOSITION OF I.AW NO. io: THE CUMULATIVE EFFECT OF TRIALERROR RENDERS A CAPITAL DEFENDANT'S TRIAL UNFAIR AND HISSENTENCE ARBITRARY AND UNRELIABLE. U.S. CONST. AMENDS.^^ vr[1. ilvrn nnATC'P nDm 7 Qq1 r_ 1A Q7V1, 111V, V111V liVl`IU1. [1i^1. i, II II Lh iv••••••••••••••••••••••••••••••••.•••••••.•-•------ •,, ^•
CONCLUSION .................................................................................................................. 97
CERTIFICATE OF SERVICE ......... ................................................................................... 98
Apnendix•
Rule 1.2, Client Lawyer Relationship, of Ohio Rules of Professional Conduct ...................1
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TABLE OF AUTHORITIES
CasesAdams v. United States ex rel. McCann (1942), 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed.
268 .................................................................................................................................. 71Cowans v. Bagley, 624 F.Supp.2d 709, (S.D. Ohio 20o8) .............................................. 82Faretta v. California, 422 U.S. at 835, 95 S.Ct. 2525, 45 L.Ed.2d 562, *225 ...................71in Owens v. Guida, 549 F•3d 399 (6th Cir., Tenn. 2oo8) ...........................................83, 84Iowa v. Tovar, 541 U.S. at 88, 124 S.Ct. 1379, 158 L.Ed.2d 209 ......................................71Rhode Island v. Innis (1980), 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297........... 94, 95State v. Ashworth (1999), 85 Ohio St.3d 56, 7o6 N.E.2d 1231, 1999-Ohio-85 . .. 74,85> 86State v. Bradley (1989), 42 Ohio St.3d i36> 538 N.E.2d 373........................................... 8oState v. Ferguson (2oo6), io8 Ohio St.3d 451, 844 N.E.2d 8o6, 2oo6-Ohio-15o2 ••74, 75State v. Green (1998), 8i Ohio St.3d ioo, 104, 689 N.E.2d 556, i998-Ohio-454........... 76State v. Gumm, 73 Ohio St.3d 413, 429, 653 N.E.2d 253, 1995-Ohio-24, certiorari
denied (1996), 516 U.S. 1177, ii6 S.Ct. 1275, 134 L.Ed.2d 221 . .................................... 94State v. Jenkins (1984), 15 Ohio St.3d 164, 168-i69, 15 OBR 311, 473 N.E.2d
264 ......................................................................................................... .................. 96,97State v. Johnson (2oo6) 112 Ohio St.3d 21o, 858 N.E.2d 1144, 2oo6 -Ohio- 6404, at 89
............................................................................. 55,71State v. Kelley (1991), 57 Ohio St.3d 127, 566 N.E.2d 658 .........................................87, 91State v. Ketterer (20o6), iii Ohio St.3d 70, 855 N.E.2d 48 •••••••••••••••••••••••••••••••••87, 91, 92State v. Lang (2011), i29 Ohio St. 3d 512, 954 N.E.2d 596, 20ii-Ohio-4215 ................. 88State v. Mink (2004), iol Ohio St.3d 350, 805 N.E.2d 1o64, 2004-Ohio-158o
............................................................................................................................74,75,96State v. Poindexter (1988), 36 Ohio St.3d i, 520 N.E.2d 568 ......................................... 96State v. Short (2011), 129 Ohio St.3d 36o, 952 N.E.2d 1121, 2oii-Ohio-3641, ¶ 136...... 96State v. Smith (200o), 89 Ohio St.3d 323, 327, 731 N.E.2d 645 •••••••••••••••••••43, 44, 8o, 87State v. Spisak ( i988), 36 Ohio St.3d 8o, 82,521 N.E.2d 8oo ........................................ 96State v. Steffen (1987), 31 Ohio St.2d u1, 123-125, 5o9 N.E.2d 383 ••••••••••••••••••••••••••••••• 97v.._.._ _. m_.a__._ /.,...nl n. oa ...] . ,.c c.... T.r iJ ...].^Luie U. I ucrcer l1`JNoJe 01 vuiv oL.3u 43i, at 43v, vyz 11.c.zu 171 ................................. 94State v. White (1998), 82 Ohio St.3d 16, 23, 693 N.E.2d 772 .......................................... 8oStrickland v. Lee, 471 F.Supp.2d 557, 6oo (W.D.N.C.2007) . .......................................... 83Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 8o L.Ed.2d 674
.......................................................................................................................................8oWood v. Quarterman, 491 F.3d 196, 203 (5th Cir.2007) ... ............................................. 83
StatutesO.R.C. 2945.o6 .....................................................................................69, 70; 75, 76, 77, 87
Other AuthoritiesOhio Rules of Professional Conduct 1.2(a) .......................................................................8o
RulesCrim.R. 11 .........................................................................................................76, 87, 91, 92Evid. R. 403 ........................................................................................................................9i
iv
STATEMENT OF THE FACTS
1. Summary ofthe case.
Denny Obermiller strangled to death his biological grandmother Candice
Schneider and his step grandfather Donald Schneider on or about August 10, 201o in
his grandparent's Maple Heights home. Sixty one year Candace Schneider was
strangled with an electric cord. Candace Schneider was also raped and beaten and left
handcuffed over her head in her downstairs bedroom. Donald Schneider suffered an
injury to the chin and was garroted with his own bedsheet and left handcuffed on his
bed in an upstairs bedroom. Semen left at the rape scene matched Obermiller. Cell
phone tower information placed Obermiller near his grandparents' home at or near the
time of the murders. Items stolen from the grandparents' home after the murders were
found in Obermiller's possession. In addition, Obermiller confessed to several people,
including family members that he killed his grandparents.
The genesis of these acts occurred earlier in the day when Donald Schneider
discovered that someone had burglarized his home and stolen a part of his coin
collPCtion. Donald Schneider susnected his grandson, Obermiller, and placed a call to
Obermiller. Donald Schneider's next call was to the Maple Height's police department
asking for an investigation into the burglary and naming Obermiller as the prime
suspect.
Within several hours both Candace and Donald were murdered and their house
ransacked. Obermiller left his grandparent's bodies to decompose, undiscovered, for
days while he came and went from their home - partying and drinking with his girlfriend
and looting the home of anything of value. Before his grandparents' bodies were
1
discovered, Obermiller sold some of their belongings to family members and his
grandfather's coin collection to a coin shop, explaining that his grandfather had died.
For days, Obermiller lied to cover up his grandparent's absence, allowing him
time to conceal their deaths and sell their belongings. Obermiller called Mrs.
Schneider's employer, claiming Donald Schneider had a heart attack and Mrs. Schneider
was tending to him. When Mrs. Schneider failed to call her granddaughter, Candace
Flagg, to wish her a happy birthday, Candace askedObermiller., to.check on them,:who
said he saw them and they were fine. Not satisfied, Candace asked the Maple Heights
police to conduct a welfare check.
From outside, officers saw Mrs. Schneider's body on the floor. Upon entering the
home, officers were confronted with a buildup of natural gas and lit candles. Obermiller
had set the central air on low to slow his grandparents' decomposition, removed the
stove's burners and turned up the gas, letting gas fill the closed home. Obermiller
placed lit candles throughout, preparing for an explosion when eventually someone
entered to look for the Schneider's.
The Schneider's bodies were found where they laid for about four davs, bloated
and unrecognizable. Mrs. Schneider was strangled and handcuffed, naked from the
waist down, her shirt puIled over her. face, exp.osing her breasts. Condoms, wrappers and
lotion were nearby. Mr. Schneider was found on his bed, garroted with a bed sheet,
handcuffed over his head. By this time, Obermiller was on the road, his rental car
packed with this grandparent's stolen belongings. With his family members providing
information to the police, Obermiller was located in Licking County the next day and
arrested.
2
a. Relevantfacts and procedural history.
Between August 5, 20io and August 9, 201o, Denny Obermiller entered the
Schneider's home and stole coins from his grandfather's coin collection. On August io,
2010 the Schneider's discovered the theft. Donald Schneider contacted Obermiller, then
the Maple Heights Police Department to report the theft, stating that he suspected his
grandson, Denny. Maple Heights police made a report and took a coin box to be
processed for fingerprints. Candace Schneider contacted Obermiller, who had been
released on parole to their home less than one year earlier.
While Candace Schneider went to work, Donald Schneider attempted to reset
their home security system password, accidently triggering the alarm. The Maple
Heights police responded at approximately 6:30 p.m. and spoke to Mr. Schneider, who
was not seen alive again.
While at work, Candace Schneider contacted Obermiller by phone. Cell phone
records established outgoing calls from Obermiller to Mrs. Schneider' place of
employment at 11:46 and 11:47 p.m., about the time Mrs. Schneider was leaving work.
Cell tower records established that Obermiller was in Maple Heights at the time of the
calls. Mrs. Schneider left work at 11:46 p.m. to drive the short distance home; she was
not seen alive again.
By the early morning hours of August 11, 2010, Obermiller had beaten and raped
Candace Schneider, inflicted a wound to Donald Schneider's jaw, and murdered his
grandparents by strangling them. Over the next few days, with his grandparents' bodies
decomposing in their home, Obermiller looted his grandparents' home of multiple items
including a flat screen television, air conditioner, tools, jewelry, coins, and stereo
equipment, selling some of the items to friends and relatives. To conceal his crimes and
3
grandparents' absence, Obermiller fabricated a story that Mr. Schneider suffered a heart
attack and the grandparents were at a hospital.
Candace Flagg, the Schneider's granddaughter, became increasing worried when
she could not reach her grandparents or locate Donald Schneider at a hospital. Ms.
Flagg contacted Obermiller, telling him she would send a friend to the grandparents'
home to check on them, but Obermiller stated he had been there and they were fine.
Not satisfied, Ms. Flagg contacted a friend to drive by the home; ultimately Ms. Flagg
requested that the Maple Heights Police conduct a welfare check.
On August 13, 2010, Maple Heights Police officers arrived at the Schneider's
home. Looking in the windows, officers observed a body on the floor. Officers opened a
window, and smelled gas. The officers forced open a door and found lit candles
throughout the home, and the burners of the gas stove removed, with the gas on in full
force. The officers found the decomposing bodies of Candace and Donald Schneider,
handcuffed, and on different floors of the home. Candace Schneider had been beaten
about the head and strangled with an appliance cord. Mrs. Schneider was naked from
the waist down, with her shirt pulled over her face, exposing her breasts. Donald
Schneider had a gash to his jaw, was strangled with a bed sheet, and found face down on
his bed. Both Schneider's were handcuffed.
Word of the Schneider's murders spread through the family, and family members
began to call Obermiller and his girlfriend. Obermiller admitted killing his
grandparents, but claimed it was an accident. Obermiller became a suspect as his family
provided information to the Maple Heights police, including that a relative had rented a
vehicle for him. On August 15, 2010, Obermiller was apprehended in Licking County,
4
Ohio, while fueling his rental car. On September 17, 20io, Obermiller was indicted in a
19 count indictment in Case No. CR 542119.
On the day of the trial, Obermiller stated he wanted to plead guilty to the
indictment. A proceeding under R.C. 2945•o6 began, after extensive discussions and
the seating of a three judge panel. Obermiller was evaluated by a defense psychologist,
who determined he was competent to stand trial and had no Atkins-related issues. A
three judge panel found a factual basis existed for Obermiller's guilty pleas, and found
him guilty of all charges of the indictment. A psychological examination was conducted,
and Obermiller was found competent to waive mitigation. Obermiller did not present
any mitigating evidence, and was sentenced to death.
2. Summary ofindictment.
The following is a summary of the charges in Obermiller's indictment.
Cts. 1-3 Aggravated Murder in violation of R.C. 2903.01(A) purposely, withprior calculation and design, cause the death of Donald Schneiderand R.C. 2903.oi(B) purposely, while fleeing after committingaggravated robbery and aggravated burglary, cause the death ofDonald Schneider on or about August 11, 2010, and the followingspecifications: course of conduct - killing of two or more persons;mnrrler to aseane - nnniahment for hiirglarv- retaliation forr-_____testimony -to prevent victim's testimony, and three felony murderspecifications - committed murder while committing/attempting tocommit/fleeing from aggravated robbery, kidnapping, andaggravated burglary.
Cts. 4-7 Aggravated Murder in violation of R.C. 2903.01(A) purposely, withprior calculation and design, cause the death of Candace Schneiderand R.C. 2903.oi(B) purposely, while fleeing after committingaggravated robbery, aggravated burglary, and rape, cause the deathof Candace Schneider on or about August 11, 2oio, and thefollowing specifications: course of conduct - killing of two or morepersons; murder to escape - punishment for burglary; retaliationfor testimony -to prevent victim's testimony, and three felonymurder specifications - committed murder whilecommitting/attempting to commit/fleeing from aggravatedrobbery, kidnapping, aggravated burglary, and rape.
5
Ct. 8 Kidnapping in violation of R.C. 2905.01(A)(3) of Donald Schneider,on or about August 11, 2010, with a notice of prior conviction and arepeat violent offender specification.
Ct. 9 Kidnapping in violation of R.C. 2905.oi(A)(3) of CandaceSchneider, on or about August 11, 2010, with a notice of priorconviction and a repeat violent offender specification.
Ct. io Aggravated Robbery in violation of R.C. 2911.o1(A)(3) upon DonaldSchneider, on or about August 11, 2010, with a notice of priorconviction and a repeat violent offender specification.
Ct. 11 Aggravated Robbery in violation of R.C. 2911.o1(A)(3) uponCandace Schneider, on or about August 11, 2010, with a notice ofprior conviction and a repeat violent offender specification.
Ct. 12 Rape in violation of R.C. 2907.02(A)(2) of Candace Schneider, on orabout August 11, 2olo,with a notice of prior conviction and a repeatviolent offender specification.
Ct. 13 Aggravated Burglary in violation of R.C. 2911.11(A)(1), on or aboutAugust 11, 2010, the occupied structure of Donald Schneider and/orCandace Schneider to commit aggravated murder with a notice ofprior conviction and a repeat violent offender specification.
Ct. 14 Tampering with Evidence in violation of R.C. 2921.12(A)(1) on orabout August 11, 2010 to August 14, 2010.
Ct. 15 Theft in violation of R.C. 2913.02(A)(1), on or about August 11, 2010to Aueust 14. 2010, of coins, iewelrv, television and miscellaneouspersonal property of Donald Schneider and/or Candace Schneider.
Ct. i6 Theft in violation of R.C. 2913.o2(A)(1), on or about August il,2010, the motor vehicle of Donald Schneider and/or CandaceSchneider.
Ct. 17 Attempted Aggravated Arson in violation of R.C.2923•02/2909.o2(A)(2), on or about August 14, 2010, the occupiedstructure of 5529 Thomas St., Maple Heights, Ohio.
Ct. i8 Burglary in violation of R.C. 2911.12(A)(3), on or about August 5,2010 to August 9, 2010, the occupied structure of Donald Schneiderand/or Candace Schneider, with purpose to commit a criminaloffense, with a notice of prior conviction and a repeat violentoffender specification.
6
Ct. 19 Theft in violation of R.C. 2913.o2(A)(1), on or about August 5, 2010to August 9, 2010, of coins and miscellaneous personal properry ofDonald Schneider and/or Candace Schneider.
3. Pre-trial hearings.
On September 22, 2010, Obermiller was arraigned in case number CR 542119, a
reindictment of CR 541010. (T. 5). Obermiller was re-indicted to add a charge of Rape,
once DNA tests confirmed the presence of Obermiller's DNA on vaginal swabs obtained
from Candace Schneider during her autopsy.
On October 5, 2010, the trial court conducted a hearing at the State's request, to
ensure the defense was receiving discovery and determine whether a competency or
sanity evaluation would be conducted. (Supp. T. 3-4). Obermiller's counsel stated they
would pick a psychologist to examine him and address relevant issues. (Supp. T. 5).
Defense counsel did not want the Court Psychiatric Clinic to examine Obermiller; rather
they wanted a private evaluation which would remain confidential. (Supp. T. 5-6).
Obermiller refused to sign a speedy trial waiver. (Supp. T. 6). Counsel requested
a continuance of the trial date. (Supp. T. 7). The assistant prosecutor noted that R.C.
294G,37(R) allows the State to req_uest a competency examination, but that one was not
being requested at this time. (Supp. T. 9). Defense counsel agreed the defense motions
tolled speedy trial. (Supp. T. lo).
The trial court inquired about records the court received from Children and
Family Services, which were requested by the State, not the defense. (Supp. T. 12). The
records were sent to directly to the trial court under seal and were not in the State's
possession. (Supp. T. 16). The trial court noted issues with some of the records, stating
that Obermiller has seen psychiatrists. (Supp. T. 16). Defense counsel stated they
would rather not address that question. (Supp. T. 16). The records were subpoenaed
7
under court signature and were sent directly to the court under seal, and opened by the
judge. (Supp. T. 18).
The State noted more discovery would be provided and that mitigation material,
school records, pharmacy records, prior cases, were also provided to the defense. (Supp.
T. 15). Defense counsel acknowledged receipt of DVDs of interviews of specific
individuals. (Supp. T. 18-19).
On October 18, 20io, a pre-trial was conducted on the record during which
speedy trial and discovery issues were discussed. (T. 7-12). The assistant prosecutor
noted that Obermiller's Children and Family Services records were subpoenaed by the
prosecutor's office, and sent directly to the court by a prosecutor representing Children
and Family Services. (T. 13). The prosecutors on Obermiller's murder case did not
receive the records or have access to them. (T. 13). The court granted defense counsels'
request for appointment of an investigator, mitigation expert, and a psychologist. (T.
15-16).
On November 17, 2012, a discussion was held on the record regarding release of
rPcnrrla_ (T_ ig) _ Tha ennrF ctater nhermiller's nricnn an(l nPnartment of Children and- -- ^-- --, -- r r
Family Services, records were released to the defense. (T. 18). The prosecutor
requested a copy if the records were offered in mitigation, noting the State subpoenaed
Obermiller's prison records and would provide a copy to the defense. (T. 23). The
defense objected to receiving a copy of the prison records; stating they wished to study
the issue first. (T. 25). The defense stated that Dr. Connell, the psychologist assigned to
Obermiller, has met with him and he is cooperating with her. (T. 26).
The prosecutor sought any mitigation information from the defense that they
wished to have presented to the Prosecutor's Office's Capital Review Committee. (T.
8
26). Obermiller's counsel stated there will be information, including what was just
handed to them today. (T. 27). The assistant prosecutor noted he had handed to the
Court and defense counsel the State's first and second omnibus discovery responses. (T.
27). The State and defense arranged to meet at the Maple Heights Police Station on
December 2, 2010 so the defense could look at the physical items of evidence, including
the rental car. (T. 28).
a. Hearing on Obermiller's motion to suppress oral statements.
On December 8, 2010, the Court, State and defense reviewed motions, and the
Court issued rulings. (T. 32-54). The Court conducted a hearing on Obermiller's
motion to suppress statements. (T. 54). The prosecutor argued that in view of the
circumstances surrounding Obermiller's arrest, his statements should not be
suppressed, as two of his three statements were unsolicited and his third statement was
in response to a question that was more an exclamation than interrogation. (T. 55).
The State presented three witnesses.
Detective Sergeant Chris Slayman of the Licking County Sheriffs Office testified
that on August i5, 2010, his department received information that Maple Heights Police
requested their assistance in locating Obermiller. (T. 57-58). Licking County Sheriffs
learned Obermiller was en route to Buckeye Lake, driving a 2009 silver Kia Rio with
Illinois registration. (T. 59).
Slayman drove his unmarked cruiser to a Wendy's where Obermiller's vehicle was
first seen. (T. 6o). Slayman was able to see the vehicle and driver as the vehicle sat in
the parking lot for ten minutes. (T. 6o). Slayman observed the vehicle exit the lot and
drive into a gas station parking lot. (T. 6o). Watching with binoculars, Slayman saw the
vehicle move from the parking lot to the gas pumps. (T. 61). Slayman observed a white
9
male exit the vehicle and enter the store and relayed this information to other officers.
(T. 61). Due to the alleged nature of Obermiller's conduct, the chief deputy had decided
to call out members of SWAT, who were assembling at a different location. (T. 61-62).
Slayman observed the male exit the store with a bag, place the bag in the vehicle,
and begin pumping gas. (T. 62). The chief deputy informed Slayman they were getting
ready to pull into the lot and to initiate apprehension. (T. 63). Slayman pulled up,
exited his vehicle and confronted Obermiller, ordering him to put his hands up or where
they could be seen. (T. 63). Slayman was in uniform with his weapon out; when
Obermiller saw him he ran away from Slayman. (T. 63).
Slayman chased Obermiller, and became aware other officers were closing in. (T.
64). Slayman holstered his weapon, removed his taser and yelled "taser, taser." (T. 64-
65). Obermiller slowed, and Slayman saw something from Obermiller's right hand drop
to the ground. (T. 65). Immediately after dropping something to the ground,
Obermiller stopped, got down on his knees, and went into a prone position face down in
the parking lot. (T. 65). Slayman did not use his taser; Obermiller gave up.
Other nfficPr.c Tlatte^ C^bermiller down and handcuffed him while Slavman^,---- ------^-- r-----
recovered a chrome-colored revolver from the ground. (T. 66). Upon picking it up,
Slayman realized it was an empty blank gun. (T. 66). Slayman collected evidence and
took photographs, which he identified in court. (T. 66-69). Slayman had no further
involvement. (T. 70).
On cross-examination, Slayman explained what Miranda rights are, stating he
did not give Obermiller his Miranda rights nor did he hear anyone do so. (T. 72, 75, 77).
Detective Chris Barbuto testified that he received a call to meet Colonel Chad
Dennis regarding an individual wanted on a homicide out of Cuyahoga County. (T. 83).
10
After being briefed, Barbuto and other officers drove to an area near the suspect, and
very shortly thereafter were told to take the suspect into custody. (T. 84). While
driving, Barbuto learned the suspect was possibly inside a BP gas station, and then
learned he was actually at the fueling pumps. (T. 84). Upon entering the gas station,
Barbuto and others quickly approached the subject, announcing sheriffs office and to
get on the ground; the suspect ran. (T. 86). Barbuto and others chased the subject on
foot, telling him Sheriff s Office, get on the ground. (T. 87). The subject gave up, slowed
and went down on the ground. (T. 87).
Barbuto handcuffed Obermiller. (T. 87). While Obermiller was on the ground
Barbuto asked him if he had anything on him that would stick or jab because Barbuto
was going to pat him down. (T. 88). Obermiller was patted down, stood up, and patted
down again. (T. 88). Barbuto stated his attention was drawn away, but that he said
something to the effect of thank you for giving up, thank you for stopping. (T. 88).
Barbuto walked away, and heard Obermiller say something about dying today. (T. 89).
Barbuto went to Slayman and asked him what he could do; Barbuto did not speak to
Ohermiller again. (T. 89).
On cross-examination Barbuto stated he did not make a report. (T. 91). Barbuto
did not give Obermiller his Miranda rights because he was not going to interview him,
nor did he hear anybody give him his rights. (T. 94).
Chief Deputy Chad Dennis testified that on August 15, 201o, he was notified of a
request for help from an outside county. Dennis requested SWAT be advised and report
to his location. (T. ioo). Five other officers arrived, were briefed, and they drove to
where other deputies had seen Obermiller. (T. ioi). Prior to their second staging,
Slayman advised that the individual was leaving his vehicle and walking into the store.
11
(T. 102-103). Dennis told his guys to move in and try to get to the location before the
individual could get back to his car. (T. 103). As units approached, Obermiller ran a
short distance then lay on the ground. (T. 103).
Dennis and Barbuto helped Obermiller up, asked if had any weapons, and patted
him down. (T. 104). Barbuto thanked Obermiller for not running any further. (T. 104).
Obermiller stated it wasn't worth dying for, or I didn't want to die today. (T. 105).
Dennis responded, "yes, it's not worth dying for." (T. 105). Obermiller answered, "I
ain't scared, I killed my grandma three days ago," or "I ain't worried, I killed my
grandma three days ago." (T. io-io6). Dennis testified that Obermiller's comment
caught him off guard and he just responded "why." (T. lo6). Obermiller responded "I
was beating up my grandfather and she got in the way." (T. io6). There were no further
questions or statements. (T. io6). Dennis placed Obermiller in a cruiser, ending his
involvement. (T. io7). Dennis testified it was not his intention to interrogate
Obermiller. (T. io8).
On cross-examination, Dennis testified that he did not advise Obermiller of
M,ra,,da_ Dennis resnonded to Obermiller's statement but since it was not their case,
they were not going to question Obermiller. (T. 114).
On redirect, Dennis testified that his statement that it was not worth dying for
was simply in response to Obermiller's comment that he didn't feel like dying today. (T.
119).
The State and defense exhibits were admitted without objection. (T. 120-121).
The portion of the suppression hearing as to Obermiller's statement during the drive
from Licking County to Cuyahoga was scheduled. (T. 121).
12
The prosecutor informed the court that both defense counsel were at Maple
Heights Police Department to physically examine the evidence, and asked if the rental
car could now be released back the company. (T. 123). The prosecutor stated the State
had provided defense counsel with information including the prison records, and asked
whether the issues of sanity and competency could be discussed at the next date. (T.
124). The defense was granted an ex parte hearing regarding appropriation at the next
date, and agreed they received and reviewed the records from the State. (T. 124-125).
The suppression hearing continued on December 15, 20io, at which time
Detective Allen Henderson of the Maple Heights Police Department was called to testify.
(T. 127). Prior to testimony, defense counsel at side bar asked why they were having a
hearing, and whether the State was offering any statements. (T. 128). The prosecutor
stated Obermiller acknowledged his Miranda rights and refused to speak with the
detective; this would not be introduced in the case in chief. (T. 128-129). The defense
agreed to stipulate that Obermiller was advised of his Miranda rights and indicated he
did not want to speak. (T. 129).
The Cnnrt nlaeeri nn the recnrrj that after the airle har rlicrncainn thP nartiPa
agreed Obermiller made no statement for which the detective should be cross-examined.
(T. 130). The prosecutor added that Detective Henderson's testimony would be that he
advised Obermiller of his Miranda rights and on his way back from Licking County to
Maple Heights, Obermiller acknowledged his Miranda rights and chose not to speak to
Detective Henderson. (T. 131). The prosecutor stated these statements would not be
offered in the State's case in chief, because Obermiller had the Fifth amendment right to
remain silent. (T. 131).
13
The prosecutor made a brief closing, outlining Obermiller's three statements. (T.
135). The first statement involved Detective Barbuto thanking Obermiller for not
running any further, and Obermiller saying he didn't feel like dying today. (T. 135)•
Barbuto's statement was not designed to bring any response from Obermiller. (T. 135).
Colonel Dennis replied it's not worth dying for and Obermiller said he's not
worried; I killed my grandma three days ago. (T. 135). There is no evidence that this
was designed to elicit "I ain't worried. I killed my grandma three days ago." (T. 136).
Statements one and two are clearly outside the purview of Miranda. (T. 136).
Obermiller's third statement involves the question "why" that Colonel Dennis
followed up with after hearing Obermiller's statement about his grandma. (T. 136). The
State asked that Obermiller's response not be suppressed, although it did elicit I was
beating up my grandfather and she got in the way. (T. 136). Colonel Dennis had
testified that Obermiller's statement caught him by surprise and he just responded
"why," but had no intention to interrogate Obermiller. (T. io6-1o8).
The defense argued that the officers had the opportunity to Mirandize as soon as
Obermiller was in custodv, but thev chose to engage him in conversation designed to
elicit responses which were incriminating. (T. 136-37). Counsel argued that surely
Colonel Dennis' question was designed to elicit an incriminating response in light of the
prior responses. (T. 137). At a minimum the third response should be suppressed, but
all three should, as they knew the seriousness of the accusation. (T. 137).
The Court denied Obermiller's motion to suppress, finding the conversation was
incident to the arrest, not a custodial arrest. (T. 139). The Court stated the statements
thanking Obermiller for not running and that it's not worth dying for were a
conversation incident to the contact they were having with Obermiller. It became a
14
question of whether the question "why" in response to Obermiller's statement he killed
his grandmother was interrogation. (T. 139)•
In response to the prosecutor's question and after consulting with Obermiller, the
defense stated they did not have anything to offer the prosecutors to take to their capital
review committee. (T. 141). Not only is Obermiller comfortable with that, is what he
wants counsel to do. (T. 141). Counsel explained they have talked to Obermiller about
this on three to four separate occasions and he understands. (T. 141).
In response to the Court's questions, Obermiller stated counsel explained it all to
him. The Court explained that counsel could explain matters to the prosecutors who
could have a review board take them into consideration, as something when looking at a
case on paper, you don't know the human considerations. (T. 142-143). Obermiller
stated he understood, that he is talking to his attorneys, they explained the whole
situation and he is content with the decisions they made and what they said on his
behalf. (T. 143). The court replied that Obermiller is young, has skillful attorneys and
that it would be to his advantage to take their advice. (T. 144). Obermiller said they
have alread, d;sc„cced th;a^ and that was final. (T, Iaal. in resnonse to the court's
questions, Obermiller stated he understood the impact this could have on his life. (T.
145).
The prosecutor stated discovery has been complied with, and that the State was
still trying to catalog old letters that would be provided to the defense, as well as results
from possible tests on the tear gas and blank gun. (T. 147). Jury questionnaires and a
potential stipulation to cell phone records were discussed. (T. 149)•
15
b. Post-suppression hearing pre-trials.
On January 5, 2011, the Court conducted a pre-trial on the record, at which the
State's motion for jury view was granted without objection. (T. 151). The Court
reviewed the questionnaires with the parties and ruled on objections thereto. (T. 154-
187).
The prosecutor noted that the State had not received any discovery from the
defense. (T. 187). Upon questioning by the Court, the defense stated that they have
complied with the rules. (T. i88). The prosecutor explained that the State had
subpoenaed Obermiller's mitigation psychologist, Dr. Connell, for the Court to ensure
she had reviewed the record and had ample opportunity to see Obermiller, and to make
sure procedurally that she would be available for court. (T. i9o).
The Court inquired whether Obermiller's position remained the same, that he did
not want counsel to speak to the prosecutor about a possible plea or resolution. (T. 191-
192). Obermiller and counsel stated that was still Obermiller's position. (T. 191-192).
4. Trial date; Obermiller's waiver of a jury trial.
Defense coiin.ael informed the trial court that Obermiller wished to address the
court, had been advised of his right to remain silent, and that it was not a good idea to
do so. (T. 2o8). Before proceeding, the court advised Obermiller of his right to remain
silent and that anything he says can and will be used against him. (T. 209). The court
advised Obermiller to confer with counsel, who are knowledgeable about procedure and
protection of his rights. (T. 209). Counsel stated they had reviewed this with
Obermiller a number of times, that it is against counsels' advice, but that Obermiller
understands the ramifications of what he is about to do. (T. 209-210).
16
The court proceeded to advise Obermiller of his right to remain silent, and
explain that the burden is on the State to prove their case, relieving him of the
responsibility to address the court. (T. 201-211). The court advised Obermiller that his
right to remain silent remains with him throughout the proceedings, no one could
comment on his silence, that his attorneys have advised him not to make any statements
to the court, that any statements could and may be used by the prosecutors, and perhaps
he should talk with his lawyers further. (T. 211-212).
Obermiller did not want to talk further with his attorneys, stating they have
already gone over this. (T. 212). The court re-advised Obermiller of his rights, which he
stated he understood. (T. 212-213). At the State's request, Obermiller acknowledged he
was on medication since yesterday, Neurotin and Remeron. (T. 213). Medication began
when he was in county (jail), that Neurontin was for mental health reasons, not seizures.
(T. 214). Obermiller had been taking it since September, and his body has adjusted to it.
(T. 215).
Obermiller refused the trial court's advice to consult with his attorneys, stating
tbn., },a.ra hoan nvar thic and it's not gn;ne to change his decision. (T. 2i6). The State-a o-
requested that the court inquire as to whether Obermiller understands what a capital
murder case is, that the death penalty is an option, and determine whether Obermiller
has the capacity to understand the choice between life and death. (T. 215-217). The
State noted that as to competency, defense counsel have employed their own
psychologist and indicated there is nothing forthcoming from the psychologist about
competency or sanity issues. (T. 216).
The court asked Obermiller whether he understood this was a capital murder
case, that a jury would be selected, and if the State proves their case beyond a
17
reasonable doubt, there could be a second phase, the sentencing phase, at which the
State and defense would put evidence on to allow the jury to determine punishment. (T.
217-218). Obermiller stated he fully understood; defense counsel stated they have met
with Obermiller numerous times and he understands. (T. 218).
Obermiller stated that he wished to change his plea to guilty and to represent
himself from this point forward. (T. 218). Obermiller stated he understood a three
judge panel would have to accept his plea and that the panel would deliberate like a jury.
(T. 219).
As to self-representation, the trial court inquired whether Obermiller felt counsel
had not adequately represented him. (T. 219). Obermiller stated counsel had
represented him adequately, that he would just like to go by himself from this point
forward. (T. 219). The trial court advised Obermiller he did not have to reveal what he
has told counsel and what counsel told him, but asked whether counsel has listened to
him as he's explained the facts to them. (T. 219). Obermiller replied they have, and, in
response to the court's questions, that counsel has given him the law and have not
rPfiicad to listen to him. (T. 219-220).
Obermiller stated he was previously incarcerated for 12 years, 2 months and 21
days, and was only out for a year. (T. 220). Obermiller, 28, had been incarcerated since
15. (T. 221). Obermiller represented himself in his juvenile case, and understood there
was a different burden of proof. (T. 221-222).
In response to the court's questions, Obermiller agreed he has been satisfied with
counsels' representation, that they have listened to him and explained the law to him.
(T. 222). The court stated a three judge panel was necessary to accept or not accept his
waiver. (T. 222). The court denied Obermiller's request to represent himself at this
18
time, finding he did not have the necessary experience necessary. The court explained
that this is the most serious proceeding we can have, and that Obermiller has indicated
counsel has provided competent representation, and there is no reason to relieve them
of their responsibility. (T. 222-223).
Obermiller understood there was a waiver of jury trial that must be completed
and reviewed. (T. 223). Obermiller stated this is something he has thought about, that
he's held this position for a while now. (T. 223). Obermiller has consulted with his
attorneys and with regard to family, he's already discussed everything he needed to with
the people he felt he needed to. (T. 223-224). When urged by the court to speak further
with his lawyers, Obermiller replied there's no need. (T. 224).
The State noted Obermiller has a 6th amendment right to represent himself, and
asked that this be revisited. (T. 225). The trial court agreed, stating that this would be
revisited once the three judge panel was present. (T. 225).
A recess was takeri during which the trial court instructed counsel to go over
every aspect of the waiver. (T. 226). After the recess, the court reviewed the waiver with
n^,Pr,,,;ltPr l;,,P by v l;ne_ nausine to iwhether Obermiller understood each line. (T.^-------------- ----- ------^ _ ^ inquire
226-228). Obermiller understood each line, and that by signing, he was waiving his
rights. (T. 228). Obermiller did not have any questions. (T. 228).
The State requested that Obermiller be advised as to the two phases of a capital
murder case and that by waiving his right to a jury, he's waiving his right to a jury as to
both the first phase and the second. (T. 228). The State also requested that Obermiller
be advised that in the second phase, the death penalty can come off the table with one
juror; that he would only need one juror to say death is off the table and the rest of the
jury would have to go to the life options. (T. 228-229).
19
The court explained the concept of two phases of the capital case, that the jury
could decide death or prison terms without any possibility of parole, consideration of
parole after 25 years or parole after 35 years (corrected to 30 years). (T. 23o). The
court explained to Obermiller that his waiver would apply to the first stage of the trial
and also the second, mitigation, stage. (T. 230). Obermiller stated he understood. (T.
231). Obermiller understood that if he had a jury trial, any one juror could decide that
he not be put to death and the jury would have to then consider the lesser sentencing
parameters, but with the panel, there would only be three judges to make that decision.
(T. 231). The State noted for the record that during this colloquy, Obermiller was
consulting with his attorneys. (T. 231-232).
Obermiller had no questions and was satisfied he understood procedurally
everything that happened. (T. 232). The court accepted Obermiller's waiver, and asked
Obermiller, as a young person, wouldn't he want to try his case to a jury? (T. 232).
Obermiller replied, no. (T. 232).,
The court explained to Obermiller that regarding a competency evaluation, he
held the pri.aeb tbat he ^an enntrnl -. (T. 23J), Oharmiller replierl - the infnrmatinn,I 1-1
I understand. (T. 233). The court further explained the waiver of privileged
information, so that anything Obermiller says to his lawyers, they can't repeat without
his permission. (T. 234). Obermiller understood, and understood the additional
advisement that he is the only one who can waive this privilege but once it's waived, it's
waived forever. (T. 234). Absent intent to commit murder, the attorneys can never tell
anyone what he has said to them, to which Obermiller stated he understood. (T. 235).
Understanding all of this, Obermiller stated counsel could share information
regarding the competency evaluation. (T. 236). The State and defense were satisfied.
20
(T. 236). Defense counsel stated Dr. Connell had been appointed as their expert and did
a competency and Atkins evaluation but did not prepare a report at defense request. (T.
236). Obermiller was okay with the contents being shared. Defense placed on the record
that Obermiller is competent and no Atkins issues were present. (T. 236).
In response, the State agreed Dr. Connell was qualified and requested that her
CV be made part of the record. (T. 237). The State was confident Dr. Connell was
qualified, but wanted to ensure the record reflects she is qualified to render an opinion
that Obermiller is competent and there are no Atkins or other mental health issues that
would go toward making him not competent to make today's decisions. (T. 238).
Defense counsel stated the CV would be provided by the end of the day, and made part
of the record. (T. 238). Obermiller agreed. (T. 239).
The jury waiver was sent to be filed, and the court awaited the three judge panel.
(T. 239). The court explained that after the waiver was filed, the parties were to go to
the administrative judge to witness the draw. (T. 240). Upon the waiver being filed, the
court reviewed it again with Obermiller, reading the waiver on the record. (T. 240-243).
(lharmiller stated he reviewed it with his lawvers, fullv understood and had no
questions. (T.242-243)•
Dr. Katie Connell's CV was provided and marked as a mutual exhibit. (T. 245).
No report was prepared, but she examined Obermiller and found him to be competent.
(T. 245).
The trial court introduced the other two judges of the panel, stating that they
would like to inquire as to Obermiller's waiver in order to feel comfortable and up to
date. (T. 247). The court read Obermiller's waiver into the record. (T. 248-250).
Members of the three judge panel engaged in a colloquy with Obermiller as to waiving
21
his right to a jury trial including whether any threats or promises were made, the extent
of his education, and his experience within the criminal justice system. (T. 250-26o).
The panel questioned Obermiller regarding his desire to discharge counsel. (T.
260-285). The panel explained the charges and potential penalties including the death
penalty and that he would give up the right to claim ineffective assistance of counsel. (T.
270-272, 279). Obermiller stated that would be okay, because he doesn't plan on
appealing. (T. 272).
Obermiller agreed that counsel had investigated his case, spoken to witnesses,
investigated, discovered, and shared with him mitigation evidence and that he
understood what the panel was explaining to him. (T. 261- 265). Obermiller repeatedly
explained he didn't need them under the circumstances, that even if they stayed he was
not going to let counsel examine nobody. (T. 26o, 266, 282). Obermiller agreed that it
would be helpful to have an attorney, it would be a logical decision, and makes sense.
(T. 268-269). Obermiller stated that they (counsel) could only do what he told them to
do, so what was the point of all the questions? Obermiller stated he didn't care, they
,.,,,,i,l c+a., (T 9stn) _ (lbermiller aereed he doesn't waive it, they can stay, answering yes.,.,..... ., ^, . ^ - • ---^, - -
that he wanted to proceed with his lawyers. (T. 284-285). The panel stated they were
prepared to proceed. (T. 285).
The prosecutor stated it was his understanding Obermiller wished to withdraw
his plea and enter a plea of guilty. (T. 285). Obermiller's counsel stated this was
correct; Obermiller wants to do this, against counsels' advice. (T. 285-286). The
prosecutor noted Obermiller had a right to enter a guilty plea, as long as he's competent
to do so. (T. 287). The prosecutor explained that the State would present evidence and
the panel would examine witnesses and determine whether the State has presented
22
evidence as to each count. (T. 287). The panel could find him guilty on the actual or
lesser counts. (T. 287). There is no plea deal; Obermiller would plead guilty to the
indictment against the advice of counsel. (T. 288-289).
A discussion ensued as to Obermiller's competency and current medications. (T.
290-296). Obermiller repeatedly stated he was clear headed and able to listen,
understand, and answer questions. (T. 292-296). The panel explained Obermiller's
rights to him, all potential penalties, and the mitigation phase. (T. 295-311). The panel
recessed until the next morning to give Obermiller time to think about his decisions. (T.
311).
5. Obermiller's guilty pleas.
The next day, the assistant prosecutor corrected the felony level and potential
penalty for count i8, burglary, which the panel explained to Obermiller. (T. 321-322).
Thereafter, Obermiller entered guilty pleas to all counts and specifications. (T. 323-
374). Defense counsel noted Obermiller has asked counsel not to take issue with
anything the panel has done. The panel advised counsel that as officers of the court
co,^nsel bas a rPsnnn^;hil;tv to alert the court to anv mistakes. (T. 375-376).r
Counsel conferred with Obermiller who indicated he understood the plea,
corrections to the plea, penalties, and stated he wanted his plea accepted as to all i9
counts and all specifications. (T. 378-379). Counsel stated Obermiller's pleas were
voluntary, that he understands the penalties, and made an informed decision. (T. 379-
384). The panel accepted Obermiller's pleas to the 19 counts, finding Obermiller has
knowingly, intelligently and voluntarily pled. (T. 385).
23
6. R.C. 2945•o6 proceedings.
The prosecutor outlined the events. (T. 386). Candace and Donald Schneider,
Obermiller's maternal grandmother and step-grandfather, resided in Maple Heights,
Ohio. (T. 386). The Schneider's raised Obermiller in their household from age four
until approximately 12, when Obermiller was removed from their home. (T. 286). On
August 28, 2009, after serving an extended time in prison, Obermiller returned home,
where his grandparents took him in. (T. 386).
Obermiller live there for a few months until springtime when he moved to his
own place. (T. 387). The Schneider's liked to camp and had a camping place in Portage
County where they liked to go when they had a two or three day stretch. (T. 387). The
prosecutor narrowed the time period between August 8 and August 15, 201o, a year
after Obermiller came to live with the Schneider's. (T. 387).
The Schneider's were at their campsite on August 5th through August 8th, 2010,
when Obermiller broke into their home and grandfather's office, and stole coins from
his grandfather, a coin collector. (T. 388). On August 7, 2012, at 10:15 a.m., Obermiller
o^IA.. ^ .......emm^ n..'F t..}1P.. rnina at a enin shop n in Cleveland, obtaining money for the coins. (T.^.,a. . .......- -- - - -
388). On August 9, 201o, at 5:45 P•m., Obermiller returned to the same coin shop and
sold more coins. (T. 388-189).
On August 10, 201o, at 11:23 a.m., Obermiller's grandfather, having discovered
the theft, called Obermiller. (T. 389). At 11:48 a.m, grandfather called the police to
report the theft of his coins and name the suspect as his grandson, Obermiller. (T. 389).
The police took photos of the broken in cabinet and dusted it for prints.
On August 10, 2010, Obermiller called his grandmother at 1:3o p.m. at her place
of employment near their home. (T. 389). Two false alarms were reported at the
24
grandparents' home; upon their response the police learned that the grandfather was
trying to change the code of their alarm system. (T. 390). The police left Mr. Schneider
at 6:30 p.m., which is the last time he was seen alive. (T. 390).
On August 10, 2010, at 11:17 p.m., a call from Obermiller's cell phone pinged off
the cell phone tower closest to the Schneider's' home, showing Obermiller to be in
Maple Heights. (T. 390). At 11:46 p.m., his grandmother, Candace Schneider, left work;
this is the last time she was seen alive. (T. 391).
On August 11, 201o, at 5:23 a.m., there are several transactions at a Key Bank
ATM kiosk in Maple Heights; efforts to determine the balance and to access the account.
(T. 391). A call from Obermiller's cell phone pinged off a Maple Heights cell tower at
1:21 P.M. Obermiller's grandmother is scheduled to work on August llth, but someone
claiming to be her nephew called Mrs. Schneider off work, claiming Mr. Schneider had a
heart attack. (T. 391-392).
At 2:28 p.m., Obermiller called his boss, asking whether he wanted to buy a flat
screen television, and made arrangements to meet the next day. (T. 392). Obermiller
....r.,..,, a,0.7u ..rwto thn ca.^.+_____mP rn____in chn_r etween 4:1F n.m. and 1:45 v.m., stating that his^uia...+.. __ n betweenac
grandfather passed away and left some things for him in the will. (T. 393).
On August 12, 2010, Obermiller had his grandmother's van and was in Elyria
with his girlfriend, Gina. (T. 393). The same day, Obermiller sold the flat screen TV and
some tools to his boss, items later identified as having come from the Schneider's home.
(T. 393). The same day, Obermiller had his aunt/stepmother ask a friend to rent
Obermiller a car under that person's name. Thereafter, Obermiller left Mrs. Schneider's
van, telling the others that it will be picked up later because grandma needs her van. (T.
25
393-394)• Obermiller met his girlfriend and they discuss leaving Ohio together. (T.
394).
On August 13, 2010, Candace Flagg, one of the Schneider's grandchildren, is
worried because she hasn't heard from her grandmother, especially since it is Candace's
birthday. (T. 394). Candace Flagg, who lives in Akron, called Obermiller to see whether
he would check on their grandparents; Obermiller agreed to do so. (T. 394-395).
At 3:47 p.m., Obermiller was back in Maple Heights and, at io:oo p.m. that night
sold his half-sister, Maxine, an air conditioner. Unbeknownst to Maxine, the air
conditioner had come from the Schneider's home. (T. 395).
The next day, August 14th, Obermiller returned to the same coin shop, selling
more coins and stating his grandfather was dead, but he was not going to wait around
for the will to be read. (T. 395). At 1:38 p.m., Obermiller's cell phone records place him
six miles from Maple Heights. (T. 395). At 5:00 p.m., Obermiller met with his
girlfriend, at which time Obermiller told her he'd hit a lick and needed to get out of town
fast. (T. 396). Obermiller and his girlfriend planned to leave for Florida that night. (T.
^nr,)J7"/•
Candace Flagg contacted Obermiller again, inquiring about their grandparents.
(T. 396). When Ms. Flagg tells Obermiller she is going to send someone to the house,
Obermiller replied angrily that they were okay. (T. 396). Ms. Flagg called the Maple
Heights Police, asking them to conduct a welfare check on her grandparents.
Officers arrived at the Schneider's home at 5:59 p.m., August 14, 2010. An officer
saw a body through the window, lifted a window and smelled the strong odor of natural
gas. (T. 396-397). Officers decided to enter the home due to the presence of a body, and
discovered the stove burners and grates had been removed from the stove, with the
26
burners on full blast, letting gas fill the sealed up house. (T. 397). The officers
discovered lit candles throughout the home, and they extinguished the candles and aired
out the house. (T. 397).
The officers discovered the body of Candace Schneider, naked from the waist
down, with her nightshirt over her face. (T. 397). Mrs. Schneider's body had been there
at least three or four days, decomposing, with used condoms about and semen inside of
her. (T.398)•
The officers proceeded upstairs where they found Donald Schneider's body on his
bed, face down, strangled to death and left to decompose for three or four days. (T.
398). Donald Schneider was strangled with his bed sheet; Candace Schneider was
strangled to death with a cord. (T. 398).
Later that night, Obermiller confessed to his girlfriend that he killed his
grandparents. (T. 398). Obermiller's family members called him; he told them a fight
happened and the death was an accident. (T. 399). Obermiller drove south to meet a
cousin who had contacted the sheriff, and the Licking County sheriffs arrested
Obermillnr at a gas station. While thanking Obermiller for giving up, he said he didn't
want to die that day, that he'd killed his grandparents. (T. 399).
Defense counsel stated Obermiller instructed him to make no comments. (T.
401). The panel explained to Obermiller that counsel could make an opening statement
and why, but Obermiller did not want them to make any statement on his behalf. (T.
402). Counsel stated that had Obermiller allowed him to, he would have objected to the
opening statement because R.C. 2945•o6 does not allow for it. (T. 405). The panel
explained to Obermiller that if he changed his mind at any time, they would even go
back and allow him to present any case he would like presented. (T. 405).
27
a. Testimony of Candace Flagg.
Candace Flagg testified that Donald and Candace Schneider were her
grandparents and Obermiller her cousin. (T. 409.). Flagg described the Schneider's
home in Maple Heights, stating that her grandfather had shown her some of his coin
collection, including some from when he served in the Vietnam war. (T. 412-413).
Grandma Candy worked at Speedway; grandfather had been laid off but was looking for
work. (T. 415). Flagg identified various family members including Jenny, Obermiller's
mother, who was killed. (T. 417). Flagg testified that Obermiller is referred to as
"Junior." (T. 418).
Flagg accompanied her grandparents when they picked Obermiller up from
prison in August, 2009; they then dropped her off at college. (T. 424). Grandma had
communicated with Obermiller the entire time he was in prison; she bought and sent
him stuff constantly, and was excited about him coming to live with them. (T. 424-425).
Ms. Flagg's grandfather did not like it because Obermiller always caused trouble when
he was young and grandma put herself deeper in debt to send Obermiller care packages.
rT. /
T-,o,.o ..,^^ +o„s;..,, t,P+,NPP_n ¢_Tan_^lnaand d_ O_ bermiller, but grandma said he's myll fG'Jf. 111aaai rruv ^r•aa^w. .. . •.• - ^ - -p - • .^
grandson so he's able to come (home). (T. 426). Flagg identified grandma's van, that
she had a flat screen TV, and lots of candles. (T. 430).
Ms. Flagg's birthday is August 13th, and she became worried about her grandma
because it was not like her to check on her. (T. 434). Flagg called her grandmother all
the time before her birthday because she hadn't heard from her; then called family
members and Mrs. Schneider's job. (T. 435). Grandma's job stated she called off
because of grandfather's heart attack, so Flagg called all the hospitals and they told her
no. (T. 435). Flagg called Obermiller who said he had not heard from grandma, and
28
said he'd check on her if he got the chance and let her know. (T. 436). Flagg never got a
return call. (T. 436). Flagg called Obermiller who said he didn't have the chance to
check, but upon learning Flagg was going to send a friend to the house, stated he had
already checked on her and she's fine. (T. 436).
Flagg called the police, who stated her grandfather's van was in the driveway, but
no other cars. (T. 437). Flagg asked the police to go inside the house; later that night
she received a call from a detective telling her to come to the police department. (T.
438). At Flagg's insistence, the police said her grandparents were found dead in the
house. (T. 438). Flagg described hearing Obermiller state over a speaker phone that he
was not going back to prison. (T. 441).
Flagg testified that she was asked to return to the station several times to identify
items that had been in her grandparents' house; a TV, tools, air conditioner. (T. 442,
445-447). Flagg stated Obermiller had regular appointments with his parole officer, and
that her grandparents had the officer's card; if Obermiller went back on drugs they were
to call her. (T. 444).
v d- that- based on a conversation with Obermiller, he did not...Defense
counsel QtatP.-Ll.llila^^ vvuavv..- ---- -- - -
want them to ask any questions. (T. 450). The panel asked Flagg questions. (T. 451-
453)•
b. Testimony of Maple Heights Police Officer Michael Gazer.
Officer Gazer testified that on August 20, 201o, he responded to the Schneider's
home on a complaint of stolen coins and that the male suspected his grandson had taken
the coins. (T. 455, 46o). Gazer spoke with Candace and Donald Schneider. (T. 455).
Gazer took photos and the coin box to be finger printed, then returned the box a few
29
hours later. (T. 459-46o). Defense counsel stated that Obermiller asked that he not be
asked any questions. (T. 462).
c. Testimony of Maple Heights Police Officer Brian Kevern.
Officer Kevern testified that on August 10, 2010, at 4:32 p.m., he responded to
the Schneider's home as a silent alarm had been tripped. (T. 464). Donald Schneider
was in the yard and explained he contacted the alarm company to change his password
because he believed Obermiller broke in and stole coins. (T. 465). Officer Kevern
responded to the Schneider's again, at 6:29 p.m., because another silent distress alarm
had been received. (T. 466). Donald Schneider answered the door and stated he'd call
the alarm company to try to solve the problem. (T. 467). Defense counsel stated that
Obermiller directed that they ask no questions. (T. 469).
d. Testimony of Maple Heights Police Officer Kevin Pozek.
Officer Pozek testified he and other officers responded to the Schneider's on
August 14, 2010 for a welfare check. (T. 470). The other officers opened a window from
the outside, raised a blind and saw a victim on the floor. (T. 472). The officer couldn't
. n;a aAPM hr,(lv_ and Officer Tuzi forced entry. (t. 472-473). Officer Pozek
smelled a strong odor of natural gas; Officer Tuzi threw a burning candle out the front
door and turned off the stove. (T. 473). The body, a female, was on the first floor,
partially covered by a sheet, with the arms over the victim's head, handcuffed. (T. 474-
475).
Officer Tuzi checked upstairs, returned, and they checked the basement where
there was a puddle of blood coming from underneath where the victim was laying. (T.
477). The fire department responded and tested the air levels. (T. 478).
The defense had no questions, based on Obermiller's wishes. (T. 478).
30
e. Testimony of Special Agent Daniel Winterich, BCl.
Daniel Winterich, a special agent with the Ohio Bureau of Criminal Investigation
(BCI), responded to the Schneider's home, made a diagram, and took photographs,
which he described and identified. (T. 482-509). Winterich identified the photographs
of Candace Schneider and the surrounding area including condom wrappers and lotion.
(T. 495-497). The victim's hands were handcuffed. (T. 499). The male victim had a
sheet tied around his neck and face; his hands were handcuffed behind his back. (T.
500, 502). A phone cord looked like it had been pulled out of the wall. (T. 500). The
male's wallet was found in the garbage, as well as a parole officer's business card. (T.
501-502).
The defense had no questions, based on their conversations with Obermiller. (T.
5io).
f. Testimony ofBCl computerforensic spccialistNatasha
Branam.
Natasha Branam testified that she is a BCI computer forensic specialist and
described her education and training. (T. 511). Branam analyzed the computers and cell
phones, and made a written report. (T. 513). Branam explained that there were two
user created accounts in one computer, "Grandma" and "Junior." (T. 515). Branam
found 25 Facebook images under the user Junior and attached the images to her report
on a disk. (T. 516). The defense objected, approached, and explained the basis of the
objections. (T. 516-517). Obermiller gave permission for this objection. (T. 518). The
prosecutor explained Obermiller was accessing internet porn sites and that Branam is a
fact, not expert, witness. (T. 519). Obermiller's counsel challenged Branam's testimony
31
as irrelevant, but the panel noted there was no jury, they could sort it out and if it's not
relevant, it would be discarded. (T. 522).
The panel noted Obermiller's objection. (T. 525). Branam testified the computer
was used on August 31, 2010. (T. 526). Images were found under the user name Junior,
associated to the user, Denny Obermiller, with a Facebook identification number. (T.
526). Branam explained the process of receiving the computer,, making a bit by bit copy
of everything so that she has an image of the exact same hard drive. (T. 527). The hard
drive was returned to the computer and not touched. (T. 527). Branam works off the
image using a data forensic tool that analyzes the computer. (T. 528).
Branam explained the images were found on Junior's account, but she has no
idea whose input it is. (T. 528). Obermiller objected, stating the information was not
relevant as Branam cannot say who accessed the information. (T. 529). Branam
testified that the date range of the photographs were from May 5, to August 8, 2010. (T.
531). In response to the panel's questions, Branam explained that while two users were
identified, she would not know if the whole household was able to access the computer.
(T3
All l • 54J•
Obermiller's counsel continued to object, stating that anyone could have accessed
the computer. (T. 535-536). The prosecutor voluntarily withdrew Branam, noting the
defense's objections, and that the next series of photographs were going to build on the
Facebook account photographs. (T. 536-537).
g. Testimony ofGina Mikluscak, Obermiller's girlfriend.
Gina Mikluscak has known Obermiller since first grade, and became
reacquainted with him - a boyfriend/girlfriend relationship - upon his release from
prison in August, 2009. (T. 548). Obermiller lived with the Schneider's, and Mikluscak
32
moved in for a few months. (T. 549-540). She and Obermiller then moved to Cleveland.
(T. 550). Mikluscak left the residence in July 2oo9 and moved to Elyria; they were
fighting a lot. (T. 552).
Obermiller contacted Mikluscak the first week of August, he wanted to visit her so
they met at a park on Saturday, August 5th or 6th, 2010. (T. 553). They went to the
Schneider's house; Obermiller retrieved a key, and they watched TV and drank. (T.
554). They spent the night and Mikluscak went home. (T. 555).
The following Thursday, Obermiller picked Mikluscak up in Elyria, in Mrs.
Schneider's van, they stayed in a hotel. (T. 556> 558). Obermiller asked Mikluscak if he
ran away, would she join him; she said no. (T. 556). The next day, Friday, they ate at
Denny's and parted ways. (T. 556).
The next day, Saturday, August 14th, Obermiller picked Milduscak up in a rental
car and they drove to a park. Obermiller told her something had happened, that he'd hit
a lick and had to leave town. (T. 558). Obermiller said it was really bad, it was going to
make the papers and he was leaving, that he did not want to go back to prison. (T. 559).
Tl...., ..,....o nn.rina cac^ina Qoo^1-bya and Obermiller made it clear he was leaving Ohio.They v.oia..,,y..aa, •,•.•J•__a a""_ _^_
(T. 559)•
Milduscak returned home, called Obermiller and said she would go with him, that
she has friends in Florida. (T. 56o). Obermiller said he'd take her to Florida. (T. 56o).
They planned to leave Sunday, but Milduscak called Obermiller and said they should
leave that night, or she would change her mind. (T. 56o). Obermiller picked Mikluscak
up at about io:oo p.m., and about a half mile or so out, he said he had $50.oo, had to
return the rental car on Monday and was she sure she wanted to go. (T. 561).
Mikluscak changed her mind, and they turned around. (T. 561).
33
At that time, Obermiller's brother's phone number came up on Mikluscak's
phone; she did not answer but another 216 number came up, and she answered. (T.
562). The caller was Maxine, Obermiller's sister who asked if she knew where Denny
was. (T. 562). Mikluscak said no, and Maxine started to cry, stating the police are
looking for him because he killed Donald and Candy. (T. 563). Milduscak hung up, and
asked Obermiller, what did you do? (t. 563). Obermiller replied, now you know what
really happened. (T. 564). Miklus.cak.began screaming and shaking Obermiller, who
stated he and Donald got into an argument, that grandma came upstairs and he hit her.
(T. 564). Mikluscak got out of the car, ran home and turned on the news. (T. 564).
Mikluscak called the Maple Heights police the next day, who picked her up and
took her to the Elyria police station. (T. 565). Mikluscak identified her boots in photos
of the rental car, and has had no contact with Obermiller since. (T. 567-568).
Obermiller requested that Mikluscak not be asked any questions. (T. 568).
The panel questioned Mikluscak, who described living at the Schneider's, that
Donald was just a cranky old man who would get drunk, but that there were no physical
rT ObPrn,iilPr and Donald were cordial for Candace but there wasallGil:allvil0. \+• J/ ^/•
an undertone they never got along. (T. 571).
Mikluscak was shocked when she heard of the rape, Obermiller always treated his
grandmother with respect, and they were each other's world. (T. 573). Obermiller and
Candace were so close, they had been the time he grew up; she adored him and had
pictures of him all over the house. (T. 573). Candace spoiled him like a little kid, they
loved each other. (T. 574). Mikluscak never saw any rage between them. (T. 575)•
Obermiller would get upset when Donald would get drunk and demean grandma; he'd
tell Donald to leave her alone and that would be the end of it. (T. 575-576).
34
When Obermiller got out of prison, he had a temper. (T. 576). Obermiller's
counsel objected to the questioning. (T. 576). Milduscak stated she gave the police a
written statement. (T. 579). Over Obermiller's objection, Milduscak read her statement,
stated it was consistent with her testimony and the panel concluded. (T. 580-581).
A discussion between the panel and defense counsel ensued as to the scope of a
R.C. 2945•o6 hearing. (T. 582-587)•
h.. Testimony of Denny Lykins, Obermiller's father.
Denny Lykins, Obermiller's father, testified that Obermiller has two siblings, a
sister, Maxine, and a brother, Jacob. (T. 589). Obermiller's mother was Jenny
Obermiller, who died when Obermiller was 2 years old. (T. 589). Obermiller's siblings
shared a different mother - Stacy Muzic- who was also cousins with Jenny. (T. 590).
Jenny's mother, Candace Schneider was married to Donald Schneider, and Candace
served as a second mother for Obermiller. (T. 590). Because Lykins was not able to care
for Obermiller on his own, Obermiller lived with Candace and Donald after Jenny's
death. (T.59o).
nhPr,,,;llar had a turbulent relationship, but the two reacquainted
themselves in 2009 when Obermiller moved into Lykins' apartment. (T. 592). After six
months of living with Lykins, Obermiller moved into his own apartment nearby, which
he shared with his girlfriend, Gina. (T. 594). Lykins and Obermiller supported
themselves by working as roofers. (T. 594). Obermiller learned the roofing trade
alongside Lykins, as they both worked for Mike Rimar at Rimar Roofing. (T. 594).
In August of 2010, the police came to Lykins' home in their search for Obermiller.
(T. 595). The police searched Lykins' apartment, informing him that Obermiller killed
Candace and Donald. (T. 596). That evening, Lykins contacted Obermiller. (T. 597).
35
Obermiller broke down crying and said it "was an accident and he was sorry." (T. 597).
Lykins advised Obermiller to turn himself in, and the police caught Obermiller on the
following day. (T. 597).
On the day police arrested Obermiller, but before he was caught, Obermiller
explained to Lykins that there was a scuffle between Obermiller and Donald. (T. 598).
Obermiller conveyed that Donald had a gun, Candace somehow was accidentally
knocked down "some steps" and the gun went off and shot her. (T. 598). About two
days later, Lykins went to the Maple Heights police station to return an air conditioner
that Obermiller had placed in Maxine's possession, as well as a TV and other goods that
Obermiller placed with Mike Rimar. (T. 6oo).
Lykins further stated that Jenny was killed when "some guy" shot her when she
tried to stop the shooter from "beating up" her girlfriend. (T. 603). Lykins explained
that the manner in which Jenny died mirrored the way that Obermiller explained how
Candace died - as Obermiller claimed Candace was shot while intervening in a scuffle
between Obermiller and Donald. (T. 603).
r,. 4ho Court's ;,,nn;rv regarding Obermiller's adolescence, Lykins
stated that Obermiller only lived with Lykins for a short period of time during his
childhood, when Obermiller was a teenager. (T. 6o4). Lykins also explained that
Obermiller went into juvenile facilities when he was 15 years old, and that Lykins
infrequently contacted Obermiller by mail during this period. (T. 604-605).
Lykins was not aware of whether Obermiller owned handcuffs, and not aware of
any animosity, sexual interest, or sexual conduct that Obermiller had towards Candace.
(T. 6o7). Lykins stated that Obermiller "worshipped" Candace. (T. 607). Although
Obermiller had a few arguments with Donald, Lykins said they were not "major." (T.
36
6o7). Lykins also clarified that Obermiller had another younger brother, Donald
Anthony, who shared Jenny as a mother. (T. 608). Although Donald Anthony lived
with Donald and Candace during his formative years, Donald Anthony no longer lived
with Donald and Candace at the time they were murdered. (T. 6o9). Lykins had never
seen Donald with a gun, but that Donald told Lykins that Donald owned a gun. (T. 61o).
Lykins described Donald Schneider as a gentle soul when Donald was sober, but
that Donald was a "raging bear" when he drank. (T. 611). Lykins described his son,
Obermiller, as a "pretty mellow" guy who never displayed any rage - and that it was not
like Obermiller to commit rape. (T. 612-613). Lykins also testified that he never asked
Obermiller about the rape, because he did not want to discuss the matter with others
listening. (T.6i7).
Lykins was not aware that Obermiller stole items from Donald and Candace's
home, which Obermiller placed in Mike Rimar's possession. (T. 618). Lykins testified
that Obermiller never told Lykins that Obermiller had "hit a lick." (T. 62o). Lykins'
criminal record includes a felonious assault that occurred around 1997 and three or four
.',urglaries tl:at he co;;:mitted durir¢ the Rn's - when Obermiller was two years old. (T.a -
621-624). Lykins was on probation at one point for breaking and entering. (T. 623).
At Obermiller's instruction, the defense had no questions. (T. 627).
i. Testimony of Vern Jordi, Mrs. Schneider's co-worker.
Vern Jordi ("Jordi") is a store manager for Speedway in Garfield Heights, where
he has worked for over 15 years. (T. 628). Jordi knew Candace, as she worked as Jordi's
co-manager for three and-a-half years. (T. 629). Jordi testified that the store is
outfitted with 12 security cameras, and that Candace was scheduled to work during the
first week of August, 2010. (T. 630).
37
A male caller who identified himself as Candace's nephew phoned the store on
August uth and told Jordi that Candace would not come into work that day, because
Candace's husband was in the hospital. (T. 630). Jordi testified that Candace normally
worked the evening shifts at the store, and that Candace came to work on the day before
the caller told Jordi that Candace needed to be with her hospitalized husband. (T. 631).
Candace's next scheduled day for work was the following Saturday, but she did not show
up or alert Jordi that she would miss work. (T. 631). Jordi believed it was strange for
Candace to not show up, and she had never before failed to give prior notice. (T. 631).
Jordi was not able to contact Candace, but Jordi later assisted police by providing
a copy from the store's DVR surveillance system. (T. 632-633). Jordi identified
Candace in stills from the footage, and noted that the stills displayed by the prosecution
revealed Candace performing her duties by closing up the store, at 11:46 p.m. on August
ioth. (T. 633-634).
Obermiller had no questions. (T. 635)•
j. Testimony of Stephen Samuel regarding car rental.
Stephen ca,,,,,Pl is friends with Stacy Muzic. (T. 636). Samuel is currently.,.,Y..,._
retired, but previously served as a school teacher with the Cleveland Board of Education.
(T. 643). Samuel met Obermiller on only one occasion, when he agreed to help
Obermiller rent a car for Obermiller's driver's test. (T. 636). Samuel's motivation for
helping Obermiller was solely based on his desire to provide a favor for Muzic. (T. 637-
638). Samuel and Obermiller met at an Enterprise rental location on Madison and 117th
and then traveled to a bank so that Obermiller could withdraw money to rent the car.
(T. 637). The two then went back to Enterprise, where Samuel signed for the rental and
Obermiller paid for the rental and signed as a second signer. (T. 637). The rental took
38
place on August 12t", 2010 - with the understanding that the car, which Samuel believed
was a Kia, would be returned the following day. (T. 638-640). On the following day,
Samuel was not able to get in touch with Obermiller, and Obermiller did not return the
car as required. (T. 640).
In response to the Court's inquiry as to why Samuel was required to sign for
Obermiller, Samuel explained that Obermiller had only a temporary driver's license, and
so Samuel was a necessary signatory as a fully licensed driver. (T. 641). Further,
Samuel described Obermiller as a very thankful "young gentleman." (T. 642).
On redirect examination, the prosecution refreshed Samuel's memory regarding
a statement he made to police near the time of the incident. (T. 646). After reading the
statement, Samuel explained that he drove the rental car back to his place, and that
Obermiller dropped off a white van he used to drive to the Enterprise location before
picking up the rental car. (T. 647). Samuel further testified that Obermiller paid for the
rental car using cash. (T. 647).
Obermiller had no questions. (T. 648).
i. T-rtmnnv nfMichaelRimar, Obermiller's employer.
Michael Thomas Rimar, Jr. owns a residential roofing company that he
established in 1997. (T. 648). Rimar is friends with Lykins, and the two first bonded
while working for Lykins' brother's crew. (T. 649). Later, Lykins served as Rimar's
"right-hand man" and Rimar trained Lykins in the roofing trade. (T. 650). Rimar was
also acquainted with Obermiller - the two met in the summer of 2009 while Obermiller
worked for Lykins' brother. (T. 65o). Subsequently, Rimar employed Obermiller . (T.
651). Rimar described Obermiller as a "laborer" whom Rimar was teaching how to
39
shingle. (T. 651). Rimar also described Obermiller as a "reliable" worker who followed
directions and was capable of comprehending orders. (T. 652).
In August 2olo, Obermiller called Rimar and asked Rimar if he knew anyone
interested in purchasing a flat screen TV. (T. 655). Obermiller told Rimar that a friend
intended to sell the TV for commissary money because his friend was going to jail, and
Rimar offered to purchase it for Obermiller's asking price of $200. (T. 655-656). Rimar
and Obermiller agreed that Rimar would put $ioo down and pay the additional $ioo at
a later time. (T. 656).
Roughly two hours after their conversation, Obermiller drove to Rimar's shop
and delivered the TV in what Rimar recognized as Obermiller's grandmother's van. (T.
657). Rimar completed his purchase of the TV and also noticed tools and speakers in
Obermiller's van, which Obermiller claimed his friend was trying to also sell for
commissary money. (T. 659). Rimar and Obermiller settled on a sale for the tools and
speakers for $ioo. (T. 659-66o). Rimar testified that one of the tools he purchased, a
drill, was worth approximately $200. (T. 66o). Obermiller then asked Rimar not to
......._cia.:Liv ^..,....i .^,o., s,..to.. of +ha.. ^_rv m_ -^ -r.vki-ns_ and explained that Lykins did not like Obermiller.. ... . _-^ - - -iii
associating with the friend who sold the TV and tools. (T. 661).
Rimar called Lykins the following Monday regarding the roofing business, and
Lykins informed Rimar that Obermiller was arrested for murder. (T. 662). Rimar told
Lykins of the sale between Rimar and Obermiller, and Lykins went to Rimar's business
to retrieve the items that Rimar purchased so that Lykins could give them to the police.
(T. 663-664). Rimar accidentally failed to return to Lykins an impact drill that he
purchased from Obermiller, but informed detectives of his oversight when he met with
them approximately one week after the incident and returned the drill. (T. 664-665).
40
Rimar also described the item that was left behind as an "air ratchet for like mechanics."
(T. 672).
The panel asked Rimar on what dates the transaction with Obermiller and the
conversation with Lykins occurred. (T. 666). Rimar responded that he purchased the
TV and tools on August 12th and spoke with Lykins about the sale on August i6th. (T.
667). The prosecution presented photographs of Obermiller's grandmother's van, which
Rimar identified, along with the respective positions of the items within the van that
Rimar purchased from Obermiller. (T. 669). Rimar described where the following
items were inside the van - a surround sound, two speakers, an air conditioning unit and
a Dewalt Drill. (T. 669). Although the picture array included a photograph of an air
conditioner, Rimar testified that he was not familiar with the unit. (T. 671). Rimar
testified that he did not carefully look over the items he purchased, because he knew
that he was "getting a good deal." (T. 670). Further, Rimar testified that he estimated
the drill's worth to be roughly $200 on its own. (T. 670).
Rimar stated that there are special types of shoes used for roofing, and that
,a ,.,, .,, µHe shoes for his workers - who would then pav Rimarnililar wllUlu o1LGU Lly 1^ .,..y .
back in increments. (T. 673-674). Rimar purchased a pair of the shoes for Obermiller
and provided him with a nail gun for laying shingles - both of which Obermiller made
payments toward. (T. 674).
In response to questioning by the panel, Rimar answered that Obermiller never
told him that he was leaving the area, and did not tell Rimar where he acquired the tools
he sold. (T. 678). Rimar had visited Candace's home on prior occasions to do a roofing
job and deliver tools. (T. 679). Rimar realized the white van Obermiller drove to deliver
the goods belonged to Candace when Obermiller referred to the van as his "grandma's
41
van" on the day Obermiller sold the items to Rimar. (T. 68i). Rimar knew Obermiller
was previously in prison and that the equipment Obermiller sold was purchased for
much cheaper than the actual value of the goods. (T. 682). Rimar claimed that, even
though the deal seemed "too good," he believed the bad economy was to blame and that
he never wanted to be involved in a murder. (T. 683).
Obermiller had no questions. (T. 683).
l. Discussion between the Panel and defense counsel regardinglack of objections and propriety of proceeding under R.C.
2945• o6.The panel asked why the defense did not object to the hearsay statements in any
of the witnesses' testimony. (T. 675). The defense responded that they recognized the
hearsay statements but were told not to object. (T. 675). Obermiller confirmed to the
panel that he understood he had the right to object to hearsay testimony, but that he
chose not to do so. (T. 676). The prosecutor explained to the Court that the prior
statements believed to be hearsay were actually not made for the truth of the matter
asserted, and accordingly, did not qualify as hearsay. (T. 677). The panel noted the
State's position and affirmed its need to ensure the record is protected against potential
for appeal. (T. 678).
The panel addressed the defense to help determine whether the procedure the
panel was following in this case was correct. (T. 685). The defense conveyed that he
could not find any source to suggest that the Court's procedure in trying the case was
correct - where, as here, the defendant waives the right to a jury trial in a capital
murder case. (T. 685-686). Although the panel and the defense agreed that R.C.
2945•o6 is the applicable statute, and that it provides that the Court must "try" the case,
the panel noted that there are "hundreds of cases" prosecuted the same way in Ohio. (T.
42
687). The prosecutor stated that Criminal Rule il applied, in that the panel must make
a finding that Obermiller voluntarily and intelligently entered his guilty pleas, along
with a sufficiency of evidence supporting Obermiller's indictments. (T. 69o).
Accordingly, the State has to present evidence and examine witnesses. (T. 691). The
panel found that the defense offered no alternative procedure other than the one the
panel had followed up to that point, and that there was no other procedure of which the
panel was aware. (T. 693). The panel then chose to follow Rule ii and the rest of the
criminal rules to proceed with the case. (T. 694).
M. Testimony of Jason Bartel, American Eagle Coin Shop.
Jason Bartel owns American Eagle Coin & Jewelry store, and buys and sells coins
and jewelry. (T. 696). Bartel operated the store on August 7ffi, 9th, lith and 14th, 2010,
when Obermiller came into the store to sell silver coins. (T. 697-704). Obermiller told
Bartel that his grandfather was dead and maintained a calm demeanor. (T. 710). Later,
Obermiller became agitated when he mentioned that he was anxious to get his
grandparents' will read so he could leave town. (T. 720). He was also aggravated that
1.:., r,...,;i....,^^ coming ;,,tn tnwn. (T. 720). Over the course of Obermiller's four visits toluo iauu•y vv u........"`a "°' -_ ' _ - _ ` . "
Bartel's store, Bartel paid Obermiller a total of $981 for Obermiller's coins. (T. 721).
Obermiller had no questions. (T. 722).
n. Testimony of Dr. Jimmie Smith, Deputy Medical Examiner.
Dr. Jimmie Smith is a deputy coroner and forensic pathology fellow at the
Cuyahoga County Coroner's office. (T. 723). Smith performed an autopsy on Candace
Schneider. (T. 725). The parties agreed to stipulate to Smith's report, the content's
authenticity and the conclusions therein, as well as the protocols followed by the
coroner's office, the verdict as to the cause and manner of death, and the DNA reports
43
and gunfire reports. (T. 727-737). Obermiller agreed to the stipulation after the panel
explained the stipulation process and what Obermiller was stipulating to. (T. 739).
Obermiller stated that he understood the stipulation and that it was made voluntarily -
without threats or promises. (T. 739). The panel instructed Obermiller that he could
participate in the case at any time if he had a change of heart and wanted to do so. (T.
741).
Dr. Smith testified that Mrs. Schneider's death was a homicide that could have
only been caused by asphyxia by cervical compression or asphyxia by ligature
strangulation. (T. 742). In response to further questioning by the panel, Smith testified
that he based his findings on a power cord wrapped around Mrs. Schneider's neck and
the fact that there was a mild hemorrhage in the anterior neck muscles. (T. 744-755)• A
moderate amount of force was used to strangle Mrs. Schneider, and she had bruising
consistent with defensive wounds. (T. 749-751). There was also a diffuse hemorrhage in
Mrs. Schneider's scalp tissue, indicating that she was struck with a blunt object, fist,
open hand or violently rammed into a wall. (T. 752-753). Smith also testified that the
_A __ _.__- _....,.....,. t..,,,a,.,,^s a,,.i that vaQinal smears of Mrs. Schneider's body revealedDclCly wa.7 wcatuaE, ..r.,....,......, ..__" ___-_ . -o----
sperm. (T. 754-757). At the time he performed the autopsy, on August 15, 201o, Mrs.
Schneider had been dead for roughly 4 days - based on her body's condition. (T. 759-
764). A separate forensic pathologist, Dr. Joseph Andrew Felo, testified that Mrs.
Schneider had marijuana in her system at the time she died. (T. 78o).
o. Testimony of Dr. Joseph Felo, Deputy Medical Examiner.
Joseph Andrew Felo is a forensic pathologist and deputy medical examiner for
the Cuyahoga County Medical Examiner's office. (T. 767). Felo performed an autopsy
on Donald Schneider- both parties stipulated to Felo's findings, conclusions and entire
44
report. (T. 767-768). In response to the Court's questioning, Dr. Felo testified that Mr.
Schneider's cause of death was asphyxia by cervical compression - ligature
strangulation - a homicide. (T. 770). Felo further stated that Mr. Schneider suffered a
sharp force injury, or stab wound, below his jaw. (T. 771). Felo explained that a
handgun at the scene, which served as a "starter pistol" could have caused the non-fatal
injury. (T. 772-776).
The prosecutor inquired how long Mr. Schneider had been dead at the time of the
autopsy, and Felo estimated four days. (T. 776). Dr. Felo was not aware of whether Mrs.
Or Mr. Schneider died first. (T. 777). Mr. Schneider's blood alcohol content level at the
time of his death was anywhere between o5 and .o9. (T. 779). Additionally, Mr.
Schneider's body wore metal handcuffs that secured his hands to the small of his back.
(T. 780).
In response to the panel's inquiry, Dr. Felo testified that Mr. Schneider had heart
and lung diseases, but that neither would cause his death in the "predictable future." (T.
783). Dr. Felo stated Mr. Schneider was strangled with a cloth, but that he did not put
W..,1. ....o-0c4onnP (T 7Rz-7sa). Dr. Felo concluded that the handcuffs were either putUp 111UG11 Lcoioa.uaa....• ^-• i-a^ i- ^
on Mr. Schneider after he died or fell unconscious. (T. 784). Dr. Felo found that Mr.
Schneider was likely sleeping at the time he was murdered, and that the cloth used to
strangle him- part of the bedspread - was knotted to allow tighter pressure for more
efficient strangulation. (T. 787-796).
p. Testimony ofLisa Przepyszny, Forensic Scientist.
Lisa Przepyszny is a forensic scientist at the office of the Cuyahoga County
Coroner and previously served as an expert witness in a separate case. (T. 803-804).
Ms. Przepyszny reviewed evidence regarding the Schneider's coroner's case and made
45
written findings - both parties stipulated to the findings, testing and conclusions. (T.
803-804). Ms. PrzepysznY testified that Mrs. Schneider had a cord tightly wrapped
around her neck that was looped for extra pressure. (T. 8o6-807). Ms. Przepyszny also
examined 2 guns - a .22-caliber revolver "blank gun" and a.22-caliber Beretta "flare
gun." (T. 8o8-8o9). The "blank gun" was examined for the presence of blood or
biological tissue, but no traces were found. (T. 81o). Blood staining from the homicide
appeared on one side of the pillow, and decomposition fluid staining was found on the
cloth wrapped around Mr. Schneider's neck. (T. 812). The handcuffs used to restrain
Mrs. and Mr. Schneider were of different types - Mrs. Schneider's bore similarities to
police handcuffs, whereas Mr. Schneider's' were more like those found in a "toy store."
(T. 815).
q. Testimony of Colonel Chad Dennis, Chief Deputy, Licking
County Sheres Office.
Officer Chad Dennis is the chief deputy of the Licking County Sheriffs Office, and
described his experience and training. (T. 829-83o). Licking County is just east of
Columbus, Ohio. (t. 831). On August 15, 2010, Officer Dennis was on special duty,,,.__,..
supervising a race event, when he was notified of a request for assistance from iv IQy.^
Heights to locate an individual wanted for a homicide who may be going to an area in
their county. (T. 832). Officer Dennis had SWAT notified to respond to his location. (T.
833). Members of SWAT responded, and he learned Obermiller had been seen and was
moving. (T. 833). Officer Dennis advised SWAT to get to Obermiller's location; but on
their approach he learned Obermiller was walking into a gas station. (t. 834). Officer
Dennis told the officers to try to get Obermiller before he got back inside his vehicle. (T.
834). As he pulled into the gas station, Officer Dennis observed Obermiller take off
46
running. (T. 835). Several officers were around Obermiller, who had stopped and lay
on the ground. (T. 835).
Obermiller was cuffed and patted down, as they had been informed he was to be
considered armed and dangerous. (T. 837). Detective Barbuto thanked Obermiller for
not running any farther, to which Obermiller stated he didn't feel like dying today. (T.
837). Officer Dennis stated it's not worth dying for, to which Obermiller stated "I ain't
worried, I killed my grandma three days ago." (T. 838). Obermiller was placed in a car
and transported. (T. 839).
The panel inquired as to the suppression hearing and whether Obermiller had
been advised of his Miranda rights. (T. 840). Colonel Dennis explained he had not
been advised, and the panel inquired whether there was another statement. (T. 843).
Dennis explained that that Obermiller spontaneously said that and it caught him off
guard, and he asked "why." (T. 840-841). It was said just matter of fact, like he was not
afraid. (T. 842). Colonel Dennis explained that when he asked why, Obermiller stated
because I was beating up my grandfather and she got in the way. (T. 843).
(T RdQ)_VUGlllllllG111auuv.ivv....•..••..• ^---wi-
r. Testimony of Detective Sergeant Chris Slayman, Licking
County Sheriffs Office.
Detective Chris Slayman, Licking County Sheriffs Office, testified information
came in from Maple Heights police seeking assistance, that Obermiller was en route
from Cleveland to Buckeye Lake. (T. 846). Soon they learned Obermiller was already in
the area. (T. 847). Detective Slayman had Obermiller's photograph and a physical
description. (T. 847). Obermiller's vehicle had been seen at a Wendy's, and Detective
Slayman drove there where he observed the vehicle move out of the lot and actually
47
follow his vehicle. (T. 848). Detective Slayman and the other vehicle turned opposite
ways, and Slayman watched a male drive to a gas pump, exit, and walk into the gas
station store. (T. 849). The male appeared to fit Obermiller's description. (T. 850).
The male exited with a shopping bag, put the bag in the car and began pumping gas. (T.
851).
Detective Slayman learned other officers were nearby, so he pulled in, exited the
vehicle and ordered Obermiller to show his hands while he approached. (T. 852).
Obermiller ran; Detective Slayman chased him and drew his taser, yelling taser taser.
(T. 854). Obermiller reached into his waistband or in front of his body, and an object hit
the ground. (T. 854). Obermiller slowed and lay on the ground. (T. 854). While other
officers took control of Obermiller, Detective Slayman retrieved a revolver from the area
Obermiller discarded an item. (T. 856). Detective Slayman identified photos. (T. 859-
864).
Obermiller had no questions. (T. 864).
s. Testimony of Fred Harvey, KeyBank investigator.
,-_..a u.....,,.., ^;,,,. ;,,.,aci;Qatnr fnr KevBank. testified that he was requested toricu iia.vcy, oe....,. I
retrieve records from a drive-up ATM at Mapletown. (T. 867). The records reflected an
inquiry into the PNC account of Candace Schneider on August 11, 2010 at 5:32 a.m. (T.
869). The next minute there was an unsuccessful attempt to withdraw $250.00. (T.
869). Seconds later there was an unsuccessful attempt to withdraw $2,6oo.oo. (T.
870). Seconds later there was a successful withdrawal of $500.00. (T. 870). There
were no images, for unknown reasons. (T. 871).
48
t. Introduction ofprior conviction.
The State introduced as Exhibit D 366 a certified journal entry of Obermiller's
Stark County conviction in 2000CRloo7, with no objection. (T. 875). The panel
explained to Obermiller his right to object and that counsel has stated it was his desire
not to object, to which Obermiller agreed. (T. 879-88i). Defense counsel stated they
have taken Obermiller's wishes and done what he has asked them to. (T. 882-886). The
assistant prosecutor noted that Obermiller and defense counsel have had ongoing
conversation or communications. (T. 887). The panel instructed Obermiller to indicate
to the court or counsel should he decide to participate and if a witness has left that he
wants to recall, the panel would allow him to do so. (T. 889).
U. Testimony ofLisa Moore, Forensic Scientist/DNAAnalyst.
Lisa Moore, a forensic scientist/DNA analyst from the Cuyahoga County
Coroner's Office, testified that she conducted DNA analysis on evidence presented on
Candace and Donald Schneider; Dr. Nasir Butt conducted the tests. (T. 89o-891, 897).
The major DNA profile from the sperm fraction from the vaginal swab of Candace
u^;iiracid2r ai.atnhed rhe DNA nrnfilP nf Obermiller. (T. 89s, 9oi). The DNA profile ofr
the major contributor from the epithelial fraction of the condoms matched the DNA
profile of Candace Schneider. (T. 896, 902-903). The source of the DNA from material
that presumptively tested positive from blood from the handcuffs associated with
Candace Schneider matched the DNA profile of Candace Schneider, while that from the
handcuffs associated with Donald Schneider matched the DNA profile of Donald
Schneider. (T.898-899)•
Defense counsel stated they had no questions after conversations with
Obermiller. (T.9o3).
49
V. Testimony of Dr. Nasir Butt, Supervisor, DNA Department.
Dr. Nasir Butt, supervisor of the DNA department of the Cuyahoga County
Regional Forensic Laboratory, identified his report and testified that he conducted Y-
STR testing on the DNA extracts from the epithelial fraction of the swabs from the
inside and outside of the condoms; no DNA was found on the outside of one of the
condoms. (T. 907, 9io). Dr. Butt concluded that there was a single contributor, and
that Obermiller and his paternal relatives could not be excluded as the source. (T. 9o8).
Donald Schneider was not a contributor. (T. 9o8-9o9).
After conversations with Obermiller, the defense had no questions. (T. 9o9).
w. Testimony ofDetective Allen Henderson, Maple Heights Police
Department.
Detective Allen Henderson of the Maple Heights Police Department testified that
on August i4th, about 6:30 p.m., he was called to the scene of what was described as a
double homicide. (T. 915). Detective Canter was on scene and recalled processing a
coin box earlier that week and that the victim, Donald Schneider, suspected Obermiller
had stolen the coins. (T. 917). Detective Henderson described his initial actions
including obtaining a search warrant for the residence as they were unsure if Obermiller
resided at the house. (T. 917). Other detectives attempted to contact Obermiller's father
and interviewed family members. (t. 918-919). They learned Obermiller had contacted
a cousin in Buckeye Lake; the cousin contacted family members and Licking County
Sheriffs were notified. (T. 920).
Detective Henderson testified a search warrant was executed on Obermiller's
vehicle, and identified photographs of multiple items found in the car that were
determined to be the Schneider's property including silverware, electronics, a DVD
50
player, Bose stereo system, condoms whose wrappers matched those found at the scene,
computer, and checks from Donald Schneider's account written to Denny Obermiller
bearing the dates of August 12, 2010. (T. 923-938). Items of clothing, coins and other
electronics were found. (T. 939-943)• A'6o's - 70's era blank gun or starter type .22
caliber revolver that would only accommodate a blank cartridge was found; .22 caliber
blank cartridges were found in Donald Schneider's office. (T. 945-946).
Detective Henderson testified as to determining Obermiller and others cell phone
numbers, obtaining the records including the cell phone tower locations. (T. 950-954).
Henderson testified that Obermiller's cell records show his number pinging nine times
off a tower location in Maple Heights from 11:17 P.M. to 11:46 p.m. on August ioth.
Obermiller's outgoing 11:46 p.m. call was made to Candace Schneider's place of
employment, about the time video shows Candace Schneider leaving work. (T. 961).
Henderson continued to describe calls made by Obermiller during the next few days. (T.
962-965).
Calls included one from Donald Schneider's cell phone to Obermiller on August
10, 2010 at 11 ..217 n•-•
with Donald Schneider's next call to the Maple Heights Police to^ <
,,,••, with
report the missing coins. (T. 965). Records showed calls between Candace Schneider
and Obermiller that day, including two calls from Candace Schneider that night at 11:40
and 11:41 p.m• (T. 966). The last call that night was from Obermiller to Candace
Schneider at 11:47 p.m., about the time Candace was locking up work, with Obermiller's
phone being in the area of the Maple Heights tower. (T. 969).
Detective Henderson testified as to conducting testing regarding burn time of the
candles, the value of the stolen property, and a ring stolen from Candace Schneider that
Obermiller gave to his sister. (T. 973-987).
51
The Schneider's were found in two different rooms, Donald in his bed upstairs
and Candace downstairs. (T.996-998). Donald's head was down where the feet would
be, handcuffed behind his back, with a piece of the bed clothing wrapped around his
neck. (T. 998-iooo). The amount of blood was attributed to an odd shaped wound to
Donald's face on his left cheek. (T. ioo8). Candace's underwear was found in a
garbage can, her body was naked from the neck down. (T. 1002). There was a shirt
pulled up over her face. (T. 1003). Evidence showed someone returned to the house
with the bodies there, based on the fact that the newspapers were brought inside the
house for three days. (T. 1004).
Detective Henderson testified that Obermiller had a key to the Schneider's house
the weekend of August 7th, when he was to care for the cats while they were camping.
(T. 1020). Obermiller's girlfriend was at the house the weekend they were gone. (T.
1020). The rental car was packed full, it appeared Obermiller was packed to travel. (T.
1029-1030).
X. Testimony of Dave Wozniak, Revol Wireless.
1__.. Tnr.......,v ..,,o+nrl;an nf rPenrds with Revol Wireless, testified as to theLQVC YvVLllauan, - --- '-----
configuration and radius of cell phone towers. (T. 1039-1041). Cell tower 1117 in Maple
Heights is located approximately one mile from 5529 Thomas and a call from that
address would likely route through that tower, on Pennsylvania Avenue. (T. 1042). The
radius is two miles around. (T. 1042). Counsel had no questions on behalf of
Obermiller. (T. io4'7).
7. Conclusion of R.C. 2945•o6 Proceedings.
Exhibits were discussed and admitted. (T. io6i-1071). The assistant prosecutor
stated that under R.C. 2945•o6, evidence has been presented, the panel has examined
52
witnesses and it is now in the panel's hands to determine whether the State has
presented evidence as to whether to accept Obermiller's plea. (T. 1072).
Prior to recessing, the panel explained to Obermiller the State's burden of proof
and that he has the opportunity to call anyone back and conduct any examination. (T.
1072-1073). After discussion with Obermiller, counsel stated that Obermiller
understands what the court said, and he wants to do nothing. (T. 1073).
The State provided a brief summation. (T. 1o74-1o9i). The prosecutor noted the
evidence of the rape of Candace Schneider supports that she was still alive; when she
was turned over by the coroner's folks, the fecal matter was undisturbed, indicating no
movement after death. (T. io9i). If Candace Schneider's body was moved during some
sexual act on her dead body, you wouldn't have the fecal matter undisturbed. (T. 1092).
While the State only charged Obermiller with one rape, there appears to have been three
attacks; two condoms and semen inside Candace Schneider. (T. 1094). Candace
Schneider put up a fight, she had bruises and contusions on her head. (T. 1091, 1095-
1o96).
arff„Pi that aggravated murder, prior calculation and design, is
evidenced by having to tie a knot around Donald Schneider's neck, obtaining a cord,
getting a ligature around Candace Schneider's neck and squeezing the life out of her;
takes a relatively long time to kill someone. (T. 1100). Aggravated burglary is present;
Donald Schneider did not want Obermiller at the house, he entered to cause harm. (T.
uoi). As to Kidnapping, Obermiller restrained the liberty of the victims. (T. iloi).
Obermiller did not want to go back to prison; he killed two people around August
lith, but he goes back and forth to the house. (T. uoi). Obermiller is seen on videotape,
calm, cool, and collected. (T. v.oi). Obermiller spoke with Mike Rimar and Mr. Samuel,
53
nothing out of the ordinary. (T. iioi). Obermiller went about his business to cash in the
loot and go to Florida. (T, iio2). Obermiller stated that he was not scared or worried; I
killed my grandma. (T. 1102).
In response to the court's question as to Obermiller being a thinking man, but
taking coins knowing there would be trouble, the prosecutor explained that Obermiller
only stole $6o.oo worth of coins. (T. lio4). Grandfather had lots of coins and does not
look at them all the time, so Obermiller picked and chose some coins, but grandfather
did find out. (T. 1104).
The Schneider's cell phone records showed an outgoing call at 11:23 a.m.; likely
grandfather is confronting Obermiller about the stolen coins because the next call was to
the police. (T. i1o5). In the recorded call to Maple Heights police, Donald Schneider is
heard stating Denny Obermiller, my grandson, took these coins, but he's (Obermiller)
denying it. (T. 1105). Obermiller is heard saying over a speaker phone, I'm not going
back to prison. (T. 11o6). Obermiller had to take care of the witnesses. (T. uo6).
Obermiller's counsel consulted with him, and had nothing to say. (T. iiu).
u n..nPl'c recall ofwiinesses.
The panel requested that some witnesses return to court for further questioning.
a. Gina Mikluscak, Obermiller's girlfriend.
Gina Mikluscak originally began living with Candace and Donald around
Christmastime, and she lived at the Schneider home for roughly 2 and-a-half months.
(T. 1144). Gina moved out of the Schneider home sometime in either January or
February of 20io and broke up with Obermiller in the summer of 2010 - although she
continued to associate with him. (T. 1126). Gina testified that she broke up with
Obermiller because he was violent towards her - he threw furniture and causing her to
54
have lumps, cuts and bruises on her head. (T. 1155-1156). Gina also lost her hearing in
one ear for roughly i month as a result of the violence. (T. 1156-1157). Gina claimed
that the fight that caused the breakup occurred because she mentioned Obermiller's
dead wife who committed suicide "years ago." (T.. i164-1165).
During the weeks prior to the weekend of August 7th, Gina visited the Schneider
home with Obermiller on multiple weekends for camping trips. (T. 1124-1130). The
times that Gina and Obermiller visited the Schneider home were mostly cordial, except
on a few occasions when Donald would drink and insult Candace. (T. 1131-1133)•
Gina previously testified that she spent August 7th, 8th and possibly the 9th of 2010
at the Schneider home. (T. 1122). Gina first arrived at the home on August 7th, when
she walked to the home with Obermiller. (T. 1123-1136). That evening, Gina and
Obermiller drank with their mutual friend, Melissa Bednar ("Melissa"), at the Schneider
home in Maple Heights. (T. 1137-1140). Melissa returned home as it went dark, and the
following day Gina met up with James Stewart ("James"), her friend, who drove her to
Elyria. (T. 1151-1159)•
aina and Obermiller planned on Thursday, August 12th to stay in a.,....^.,.1.. ....^ ,
motel room that night so that they could keep their association a secret from Gina's
family. (T. 1159-1161). Obermiller picked up Gina in Candace's van at 9:30 p.m. and
drove her to a Howard Johnson hotel in Elyria. (T. 1171-1172). Obermiller did not act
like himself at the hotel, and asked Gina if she ever thought of running away. (T. 1172-
1173). Obermiller also told Gina that he was able to take Candace's van because Candace
and Donald were at the hospital visiting one of Donald's sick relatives. (T. 1175).
In response to questioning by the Court, Gina testified that Obermiller would
purchase and use marijuana, but that he was not a "drug fiend." (T. 1178-118o).
55
However, Obermiller had drug problems before and relapsed shortly after Gina left him.
(T. 118o). Gina also stated that Obermiller told her on August 7th that he was going to
seek treatment for his bipolar disorder and depression, and that he would start "getting
his life together." (T. 1182-1184). Gina explained that Obermiller received medication
for depression while in prison and that he was also provided with the medication upon
his release. (T. 1241). However, Obermiller never refilled his medications when they
ran out. (T. 1241-1242). Gina further testified that Obermiller displayed "bad" mood
swings and had periods of manic behavior toward the end of July, 2010. (T. 1243-1246)•
Despite this, Gina clarified that she believed Obermiller still knew the difference
between right and wrong. (T. 1246). Notwithstanding Obermiller's mental health,
Obermiller was very physically fit and capable of performing 5o-6o pull ups at a time.
(T. 1225). In contrast, Donald would barely be able to do a few pushups. (T. 1225-
1229).
The panel inquired into Gina and Obermiller's intimate relations. (T. 1193). Gina
responded that Obermiller never used condoms or handcuffs when they had sexual
,,,,.,'l r;> o.^ri^P a;,,a did not recoenize the condoms or the handcuffs thatreiauv.ia ^^. ^^y^^. ...,.. ......... .....- ^
Obermiller used in his attack against Candace and Donald. (T. 1268-1269). Gina also
mentioned that she never saw Obermiller carry a gun or knife on his person. (T. 1195).
Gina additionally stated that Obermiller never expressed any anger sexually toward her.
(T. 1250).
Subsequently, after their rendezvous at the hotel, Obermiller and Gina met the
following Saturday afternoon, on August 14th, at a park in Elyria. (T. 1198-1201).
Obermiller drove the rental car to meet Gina, and told her that he was going to leave the
state because of some "trouble." (T. 1202). Obermiller also conveyed to Gina that
56
Candace told Obermiller that Candace loved him and would always protect him. (T.
1203).
During this meeting Obermiller told Gina that he "hit a lick," although she was
unsure of what that meant at the time. (T. 1205-1207). Obermiller then asked Gina if
she would travel out-of-state with him, and she agreed to travel to Florida with him. (T.
1209). Obermiller picked up Gina around 9:50 p.m. that evening in the rental car, but
the pair agreed not to go through with their trip just a few miles after they started out.
(T. 1211-1212).
As Obermiller dropped Gina off, Obermiller's brother Jacob and sister Maxine
called Gina. (T. 1213-1214). Maxine asked Gina if she knew where Obermiller was and
Gina replied that she did not - even though Obermiller was in the car with Gina. (T.
1214). Maxine told Gina that the police were searching for Obermiller because he killed
Candace and Donald. (T. 1214). Soon after, Gina left the car and the two parted ways.
(T. 1216).
Later, Gina prepared a statement for the police on August 20th, 2010. (T. 1252).
Ir. that qtatemont^ Gina detailed that Obermiller told her while she and Obermiller sat in
the rental car on the night of August 14th, that there was a gun present when he attacked
Candace and Donald. (T. 1256). In response to questioning from the Court, Gina
further stated that she was aware that Donald had a gun because he mentioned it in
conversation - although she never actually saw it. (T. 1259)•
The panel questioned Gina regarding the Schneider home and Gina responded
that she assumed that Donald's office door was always locked when he was not in the
room. (T. 1279). Gina also testified that when Donald was in his office, he would leave
the door open a crack but that she never felt as though she could enter without a valid
57
reason and without knocking first. (T. 1262-1280). Gina described the Schneider's
nighttime routine. (T. 1266). When Candace got home from work around midnight, she
"fiddled around," watched TV and did not change into her pajamas until 12:3o a.m. (T.
1266). Then, when Donald and Candace readied themselves for bed, they always wore
pajamas - though Candace never wore any revealing nightgowns. (T. 1263-1265). Gina
believed that, due to the volume of the TV, Candace would not be able to hear if there
was "something going on" in Donald's office before Candace went to bed at night. (T.
1267).
The panel inquired into the Schneider's finances, and Gina testified that Donald
would not write Obermiller checks and that neither Candace nor Donald would provide
Obermiller with credit or debit cards. (T. 1270-1271). Although Candace would
sometimes provide Obermiller with small amounts of cash, she and Donald never gave
Obermiller large sums of money at a time. (T. 1271). Additionally, Candace and Donald
endured some financial hardship because Donald's unemployment was about to expire,
and so Candace often worked long shifts at Speedway to help make ends meet. (T.
i2%3)•
b. Natasha Branam, BCI computer forensic specialist.
Natasha Branam ("Branam") is a computer forensic specialist with the Ohio
Bureau of Criminal Identification & Investigation. (T. 1285). Branam investigated three
cell phones regarding the case: a silver Sanyo, a Samsung Moment and a purple LG
Lotus. (T. 1285-1286). The silver Sanyo was Obermiller's phone, which he used to
communicate with various individuals in August, 2010. (T. 1286-1294)•
58
c. Stacey Muzic, Obermiller's stepmother and aunt.
Stacy Muzic, or Stacy Ann Lykins is Obermiller's stepmother. (T. 1300). Muzic
married Lykins in 1998, but divorced Lykins in 20o8. (T. 1301-1302). Muzic explained
that Obermiller's mother died on September 2nd, 1984 when Obermiller was roughly
three (T. 1326). Muzic testified that Obermiller was first placed in Candace and
Donald's custody after Obermiller's mother died, but that Muzic and later her mother,
Patricia, had custody over Obermiller during his preteen to early teenage years. (T.
1302-1305). Obermiller left Candace and Donald's home when he was roughly 12,
because he was "unruly." (T. 1327). Afterwards, Obermiller lived with Muzic and Lykins
for roughly 1 year, and then he lived with Patricia until he first went to prison for
robbing a store around age 15. (T. 1303-1331)•
Muzic stated that Obermiller contacted her sometime during August ilth or 12th
regarding his need for a rental car to take a driver's test. (T. 1308-1309). Muzic then
contacted her friend, Samuel, who agreed to assist Obermiller. (T. 1309-1310). On the
day ObermiIler was to obtain the rental car, Thursday August 12th, Obermiller drove to
ra,,.^a^P'.^ wh;te van. (T. lsio-i3i1). Obermiller then drove Muzic and1V1U6n: 0 uviia., au v....^.--^-- - ^ ^---- - - -
Samuel to the Enterprise car rental location in Candace's van, and Obermiller paid for
the rental car using a$25o money order. (1314-1315)• After Obermiller paid for the
rental car, Samuel drove the rental car back to Muzic's apartment and Obermiller drove
Muzic back to her apartment in Candace's white van. (T. 1317).
Muzic testified that Obermiller had a good relationship with Candace. (T. 1319-
1320). Obermiller told Muzic that Donald abused him when he was very young, that
Donald beat Obermiller and his brother on a few occasions, Donald hit Obermiller with
a phone when Obermiller answered it at age 3, and he locked Obermiller in the attic
59
without food for days when Obermiller was less than io years old. (T. 1320-1324)•
Candace did not protect Obermiller during these periods of abuse, because she did not
believe it occurred. (T. 1321). However, Muzic conveyed that Candace was a very nice
and generous person. (T. 1325)•
Muzic never witnessed Obermiller express anger in any sexual context. (T. 1330).
Muzic acknowledged that she heard Obermiller got married while he was in prison, but
that his wife committed suicide while Obermiller was still imprisoned. (T. 1335)• Muzic
knew Candace wore a ring around her neck, but that the ring was never in Muzic's
possession.(T. 1344)• Muzic knew her daughter, Maxine, purchased an air-conditioner
from Obermiller. (T. 1344).
Muzic informed the Court that Obermiller did not return the rental car on time,
so she texted him that Enterprise was going to make a police report. (T. 1341-1342)•
Obermiller texted Muzic that he dropped the rental car off on Saturday, August i4th. (T.
1351). Muzic said she was not aware that Obermiller lied about returning the car until
she appeared as a witness in Court. (T. 1351).
r^.,,;,. t,^^ a criminal record, . and she was sentenced to two separate prison terms^.^,.^.., ...,., ^ .,_--------- -
for different felonies. (T. 1347). In 1994, Muzic was imprisoned for theft, and she was
later imprisoned for aggravated vehicular assault. (T. 1348). Muzic claims that she
suffered memory loss from the vehicular assault, and so she was not able to verify a
domestic violence complaint that revealed she was the victim in a case from 1996. (T.
1349). The complaint states Obermiller as the defendant in that case. (T. 1349)•
9. Panel's verdicts. ,
The panel stated that it may have been deficient in its Adam Walsh instruction on
the specifics of Count 12, and further informed the defense of Count 12's requirements
60
as a Tier III offense. (T. 1365-1365). The defense responded that any deficiency did not
affect Obermiller's plea, and Obermiller waived any error caused by failing to give the
instruction prior to the plea. (T. 1365-1366). Obermiller further said that when he
entered his plea, he had in mind that he would be a Tier III offender. (T. 1366).
Further, Obermiller entered a plea of guilty to all counts, 1 through 19 inclusive, as well
as each specification to each count as set forth in the indictment as charged. (T. 1366-
1367). Both sides agreed that there was no desire to put on any additional evidence or
statements. (T. 1366-1367).
The panel found unanimously that the State produced evidence that satisfied the
defendant's guilt beyond a reasonable doubt as to each essential element, each count
and each specification. (T. 1367-1368). The panel found Obermiller guilty on Count 1,
for the aggravated murder of Donald, as well as to the course of conduct specification
involving the killing of 2 or more persons. (T. 1368). The panel found Obermiller guilty
of the murder to escape specification for burglary. (T. 1368). The panel further found
Obermiller guilty of the retaliation for testimony specification, as well as for 3 felony
.._a -o afina+;.»,^ - ag^ravated robbery, kidnapping and aggravated burglary -ll1U1LLG1
committed during the time of the aggravated murder. (T. 1368).
The panel found Obermiller guilty on Count 2 and Count 3, for the aggravated
murder of Donald under R.C. 29o3.oi(B), while committing, or attempting to commit,
or while fleeing immediately after committing or attempting to commit the offense of
aggravated robbery and burglary, respectively. (T. 1369-1370). For both counts, the
panel found that Obermiller was guilty on the course of conduct specification, involving
the death of 2 or more persons - Candace and Donald. (T.1369-i37o). The panel found
Obermiller guilty of the murder to escape specification for the underlying offense of
61
burglary and guilty of the retaliation for testimony specification on both Counts. (T.
1369-1370). The panel found Obermiller guilty of the three felony murder specifications
on both Counts for aggravated robbery, kidnapping and aggravated burglary. (T. 1369-
1370).
The panel found Obermiller guilty on Counts 4, 5, 6 and 7 for the aggravated
murder of Candace. (T. 1371-1375)• The panel found under Count 4 that Obermiller was
guilty of the aggravated murder of Candace with prior calculation and design under R.C.
2903.01(A). (T. 1371). The panel found under Counts 5, 6, and 7 that Obermiller was
guilty of the aggravated murder of Candace under R.C. 29o3.oi(B), in that Obermiller
purposely caused the death of Candace while committing or attempting to commit, or
while fleeing immediately after committing or attempting to commit the offenses of
aggravated robbery, aggravated burglary and rape, respectively. (T. 1372-1375)• As to
Counts 4, 5, 6, and 7, the panel found Obermiller guilty of the course of conduct
specification for purposely killing 2 or more persons, namely Donald and Candace. (T.
1372-1375). The panel also found Obermiller guilty of the murder to escape
,.;fS..o+inn fnr Cnnnts a throuFh 7 inclusive. T. 1372-1375). The panel also foundspO...
regarding Counts 4 through 7 inclusive, that Obermiller was guilty of the retaliation for
testimony specifications, and that Obermiller was guilty of the four felony murder
specifications relating to Candace's murder, aggravated robbery, kidnapping, aggravated
burglary and rape. (T. 1372-1375)•
The panel found Obermiller guilty on Count 8 for kidnapping Donald and Count
9 for kidnapping Candace. (T. 1375-1376)• The panel found Obermiller guilty on both
Counts with a notice of prior conviction under R.C. 2905.01(A)(3), and for repeat violent
offender specifications. (T. 1375-1376)•
62
Additionally, the panel found Obermiller guilty on Count io for the aggravated
robbery of Donald and on Count ii for the aggravated robbery of Candace, under R.C.
2911.oi(A)(3). (T. 1376-1377). For both Counts, the panel found Obermiller guilty of
the notice of prior conviction specifications and repeat violent offender specifications.
(T. 1376-1377)•
The panel found Obermiller guilty on Count 12 for the rape of Candace under
R.C. 2907.02(A)(2). (T. 1377). The panel found that Obermiller engaged in sexual
conduct with Candace by purposefully compelling her to submit by force or threat of
force. (T.1377-i378)•
The panel found Obermiller guilty on Count 13 for aggravated burglary, in
violation of R.C. 2911.11(A)(1). (T. 1378). The panel found that Obermiller trespassed in
an occupied structure when Donald and/or Candace was present - with purpose to
commit aggravated murder. (T. 1378). The panel also found that Obermiller recklessly
inflicted, or attempted to inflict or threatened to inflict physical harm on Donald and/or
Candace. (T. 1378).
T;;; p.,n^I fo,and Obermiller guilty on Count 14 for tampering with evidence....
under R.C. 2921.12(A)(i). (T. 1378). The panel found that Obermiller did, knowing an
official proceeding or investigation was in progress or was about to be or likely about to
be instituted, alter, destroy, conceal or remove any record, document, or thing, with
purpose to impair its value or availability as evidence. (T. 1379)•
The panel further found Obermiller guilty on Counts 15 and 16 for theft, in
violation of R.C. 2913.02(A)(1). (T. 1379-138o). Under Count 15, the panel found
Obermiller guilty of depriving the owner, Donald and/or Candace, of miscellaneous
coins, jewelry, television, and other miscellaneous personal property or services worth
63
between $500 and $5,000 - without consent. (T. 1379). Under Count i6, the panel
found Obermiller guilty of depriving the owner, Donald and/or Candace, of the 1994
Mercury Villager van. (T. 138o).
The Court found Obermiller guilty on Count 17 for attempted aggravated arson
under R.C. 2923.02 and 2909.02(A)(2). (T. 138o). The panel found that Obermiller, by
means of fire or explosion, knowingly attempted to cause physical harm to an occupied
structure. (T. 1380).
Likewise, the panel found Obermiller guilty on Count i8 for burglary in violation
of R.C. 2911.12(A)(3). (T. 138o). The panel found Obermiller committed this offense
between August 5th, 201o and August 9th 2010, in that he did, by force, stealth, or
deception, trespass in an occupied structure, the property of Donald or Candace, with
purpose to commit theft in the structure. (T. 1380-1381).
The panel found Obermiller guilty as to Count 19 for theft in violation of R.C.
2913.02(A)(1). (T. 1381). The panel found that Obermiller deprived the owner, Donald
and/or Candace, of various property, including coins and other miscellaneous personal
p o,-., hPt^,vaan AngiiGt Gth andAugnst q^, 2010. (T. i38i).rvra,
The panel found that Obermiller was the principal offender in each of the felony
murder specifications in Counts i through 7 inclusive. (T. 1381). The panel reiterated
that it found Obermiller guilty of each specification as defined in the indictment, and
that the aggravated murder of Donald as to Count 1- was done purposely with prior
calculation and design. (T. 1381-1382). The panel also found Obermiller guilty on all
counts and all aggravated specifications, which made Obermiller eligible for the death
penalty. (T. 1384).
64
The panel then presented the statutory mitigating factors to the defense, and
Obermiller refused a presentence report and court psychiatric evaluation report for the
mitigation phase. (T. 1389-1392)• Regardless of Obermiller's refusal, the panel referred
ObermiIler to the court psychiatric clinic for an evaluation of his competency to waive
mitigation. (T. 1392). The panel also provided "plenty of time" for mitigation - 4 weeks
- in case Obermiller had a change of heart. (T. 1392-1396)•
10. Mitigation proceedings, State's merger ofcounts, and
Obermiller's waiver ofmitigation.
The State gave an opening statement, in which it asserted that it proved beyond a
reasonable doubt the existence of all six aggravating circumstances regarding Donald's
death and all seven aggravating circumstances regarding Candace's death. (T. 1432).
The State further proposed that the aggravating circumstances would outweigh, beyond
a reasonable doubt, any mitigating factors the panel may find regarding the case. (T.
1432-1433). The State delineated that the aggravating circumstances are: the course of
conduct specification, the murder to escape accounting, the retaliation for testimony,
^the aggravated robbery, the kidnapping and the aggravated burglary. (T. 1433' ^• Tic
same aggravating circumstances apply to Candace, with the additional circumstance of
rape. (T. 1433-1434)•
Moreover, the State explained that it would merge the aggravated burglary, the
kidnapping and the aggravated robbery against Donald into the retaliation for testimony
specification. (T. 1434)• The State also specified that the murder to escape specification
will merge into the retaliation specification - leaving after merger - two aggravating
circumstances to be weighed against any mitigating factors. (T. 1435). Accordingly,
65
these two factors are to be applied in Donald's instance - course of conduct and
retaliation for testimony. (T. 1435)•
Likewise, regarding Candace, the State proposed that it would merge the
aggravated burglary, the kidnapping and the aggravated robbery into the retaliation
specifications. (T. 1435)• The State further clarified that it would merge the murder to
escape into the retaliation. (T. 1435). The State's remaining aggravated circumstances
against Candace are the course of conduct, the retaliation for testimony and the felony
murder for rape. (T. 1435). Accordingly, the State presented a total of five aggravating
circumstances altogether between the crimes against Donald and Candace - two for
Donald and three for Candace. (T. 1436).
The defense then declined to make an opening statement or present mitigating
evidence. (T. 1437). The defense acknowledged that the case involved substantial
elements for mitigation, but Obermiller affirmed his desire to not put forth any opening
statement or evidence on the matter. (T. 1440-1442). Additionally, in response to panel
questioning, Obermiller displayed an understanding of his options, as well as the
n-,itigating factors. (T. 1440-1449)• The panel noted that Obermiller was
evaluated by the court psychiatric clinic, and that Dr. Resnick determined Obermiller
was competent to waive mitigation. (T. 1451-1452). Obermiller also had extensive
conversations with Dr. Resnick, which demonstrated Obermiller gave a "substantial
amount of thought and consideration" to his decision. (T.1452)•
The State then presented its closing argument, in which the State illustrated that
Obermiller had the absolute right to waive mitigation provided it was done so knowingly
and intelligently - and provided Obermiller understood and appreciated the
consequences of doing so. (T. 1456). The panel acknowledged that Obermiller properly
66
waived mitigation, and that he illustrated he understood and appreciated the law and its
consequences. (T. 1456-146o). The panel further determined that Obermiller was
capable of making intelligent decisions, that he understood the proceedings and
understood his waiver of rights. (T. 146o-1463).
The State then gave its closing argument, in which it stated that the aggravating
circumstances must outweigh the mitigating factors beyond a reasonable doubt, and
that the aggravating circumstances outweighed the mitigating factors in this case. (T.
1465-1470). Accordingly, the State proposed that the aggravating circumstances
outweigh the mitigating factors in this case, and so the panel must impose a death
penalty. (T. 1470). The State then resubmitted, and the panel accepted, all of its
exhibits and evidence from the first phase of trial for proof of the aggravating
circumstances. (T. 1474)-
11. Sentencing hearing.
The panel found that Obermiller was provided with the opportunity to present
evidence for mitigating factors, but that he knowingly, intelligently and voluntarily
w0.iveu i.i3 i.ght t^ d^ s^•^T. iaR6). The nwas also satisfied that Obermiller was^-- -^--^- -
competent to waive his opportunity to present mitigating factors. (T. 1486). The panel
then examined the evidence presented by the State for any mitigating factors during
trial, and found that the State established the aggravating circumstances beyond a
reasonable doubt. (T. 1487). The panel also found that the aggravating circumstances
outweighed the mitigating factors by evidence beyond a reasonable doubt. (T. 1487).
The panel restated that Obermiller pled guilty to all counts, and that he was found guilty
beyond a reasonable doubt on all counts. (T. 1487).
67
The panel then heard victim impact statements from Donald's sister, Miss Darla
Van Horn, as well as from Donald's brother, Danny Schneider, and Candace's sister,
Patricia Muzic. (T. 1493-1496). Subsequently, the panel imposed the mandatory
sentence of death for the aggravated murders of Donald and Candace under Counts 1
and 4, respectively. (T. 1498). The panel also sentenced Obermiller to io years for rape
under Count 12, and io years for aggravated burglary under Count 13. (T. 1498). The
panel sentenced Obermiller to 12 months for theft under Count 15, and 18 months for
theft of a motor vehicle under Count i6. (T. 1498). The panel also imposed a 5 year
sentence for attempted aggravated arson under Count 17, and 5 years for burglary under
Count i8. (T. 1498)•
The panel ruled that the sentences will run consecutively, or for a total of 32.5
years in a combination of monthly and annual increments. (T. 1498). The panel noted
the need to protect the public due to Obermiller's extensive criminal history, the fact
that the crimes were committed during post-release control and the horrendous nature
of Obermiller's crimes. (T. 1499-1500). The panel also imposed five years mandatory
nnntrn] a„ei TPn„irP(l nhermiller to register as a sex offender and report toW^l .,..,,,.,,,,, ,,,,,,,,,,,, ---- _- - _
the county sheriff accordingly. (T. 1500-1501). Initially, Obermiller refused to sign a
document regarding his rights and responsibilities as a sexual offender. (T. 1501).
Ultimately, Obermiller signed the document, "Denny Obermiller. Go fuck yourself." (T.
1511-1512).
The panel then noted Obermiller's mandatory right to appeal his death sentence
and that counsel would be appointed without cost if Obermiller was unable to pay. (T.
1507). The defense stated that Obermiller did not want an appeal and did not want to
68
appoint a lawyer to proceed with the appeal. (T. 15o8). The panel then ruled the
imposition of the death penalty will be imposed on February 25th, 2012. (T. 15o8).
I.AW AND ARGUMENT
PROPOSITION OF LAW NO. 1: A DEFENDANT HAS ACONSTITUTIONAL RIGHT TO WAIVE COUNSEL ANDREPRESENT HIMSELF WHEN THE WAIVER IS MADEKNOWINGLY, INTELLIGENTLY AND VOLUNTARILY. U.S.CONST. AMENDS. VI, XIV; OHIO CONST. ART. I¶¶ 1o, 16.
In his first proposition of law, Obermiller claims that he was denied his
Constitutional right to represent himself at his capital trial. A "capital trial," however,
was not held. Obermiller entered guilty pleas to all counts and specifications of the
indictment. A three judge panel proceeded under R.C. 2945•o6 to "examine the
witnesses, determine whether the accused is guilty of aggravated murder or any other
offense, and pronounce sentence accordingly."
Additionally, Obermiller withdrew his request to represent himself. (T. 284-
285). Obermiller acknowledged that if he represented himself he would not present a
defense, but just occupy a seat and take punches. (T. 283-284).
hv rrnmsel at hic snnnression hearing and did not^^^.......^. ..u ..,t ............... ..^ ..^___--- -- ____ ---rr- -- .,
inform the Court that he wished to represent himself until the day trial was to begin. On
the day of trial, Obermiller stated that he wished to change his plea to guilty and to
represent himself from this point forward. (T. 218). The State noted Obermiller had a
6th amendment right to represent himself, and asked that this be revisited. (T. 225).
After an exchange with Obermiller, the Court decided to proceed with the jury trial
waiver, and agreed to revisit self-representation once a three judge panel was selected.
(T. 225).
69
Once the panel was seated, Obermiller's waiver of a right to trial by jury was
completed. (T. 249-250). During questioning by the panel, Obermiller stated that he
has never been to a trial, had no criminal law education, and agreed that it made sense
to have the very best counsel handling cases that could call for the death penalty. (T.
251, 253, 256, 267). As for his reason to proceed without counsel, Obermiller stated
because "I don't need them." (T. 26o). "If I keep them, I'm not going to let them put no
defense up. So what's the reason for them sitting here? I'm sure they got better things
to do than sit here with a piece of shit." (T. 26o). Following that statement, the panel
reviewed Obermiller's waiver of counsel and rights. (T. 261-266). Obermiller was
satisfied with his attorneys and the work they had done. (T. 264-265). During the
exchange, Obermiller asked what the point of examining witnesses if he's pleading
guilty. (T. 266).
The panel proceeded to read the charges to Obermiller, asking him after each
offense whether he understood. (T. 272 ). Obermiller stated he understood some, but
did not understand others. (T. 274, 276). When asked if his purpose to be his own
o+tnvnocr inTa9 tn nraaent no defense. iust sit and take punches, Obermiller answered.......,^ ....... _ r__ , ° -
"yes." (T. 283). Obermiller conceded he was not going to be his own attorney; he would
just occupy the seat. (T. 284). Obermiller explained his attorneys could only do what he
tells them to do; stating they could stay. (T. 284). Obermiller stated he doesn't waive,
the attorneys could stay and that he wanted to proceed with his lawyers. (T. 284-285).
Obermiller withdrew his request to represent himself, which would have
amounted to occupying a seat and taking punches. (T. 283). During the R.C. 2945•o6
proceedings, Obermiller consulted with counsel and permitted them to object to some
testimony, resulting in exclusion of some evidence.
70
Had Obermiller not withdrawn his request, the panel would have been justified in
rejecting his request as not being knowing, voluntary, and intelligent.
A criminal defendant has the constitutional right to represent himself attrial. Faretta v. California (1975), 422 U.S. 8o6, 95 S.Ct. 2525, 45 L.Ed.2d562. *223 However, "the Constitution * * * require[s] that any waiver ofthe right to counsel be knowing, voluntary, and intelligent *** ." Iowa v.
Tovar (2004), 541 U.S. 77, 87-88, 124 S.Ct. 1379, 158 L.Ed.2d 209. "Inorder to establish an effective waiver of [the] right to counsel, the trialcourt must make sufficient inquiry **1163 to determine whether defendantfully understands and intelligently relinquishes that right." State v. Gibson
(1976), 45 Ohio St.2d 366, 74 0.O.2d 525, 345 N.E.2d 399, paragraph twoof the syllabus. And Crim.R. 44(A) provides that a defendant is entitled tocounsel "unless the defendant, after being fully advised of his right toassigned counsel, knowingly, intelligently, and voluntarily waives his rightto counsel."
State v. Johnson (20o6) 112 Ohio St.3d 210, 858 N.E.2d 1144, 20o6 -Ohio- 6404, at 89
"Faretta holds that a defendant electing to represent himself "should be made
aware of the dangers and disadvantages of self-representation, so that the record will
establish that `he knows what he is doing.' " Faretta v. California, 422 U.S. at 835, 95
S.Ct. 2525, 45 L.Ed.2d 562, *225 quoting Adams v. United States ex rel. McCann
(1942), 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268. However, the United States
^......,..,..o r^,,,,,.r «t, ..ar,.,^ ,,,,..r *** nrescribed anv formula or script to be read to av....^^vuyaciiic,
defendant who states that he elects to proceed without counsel. The information a
defendant must possess in order to make an intelligent election * * * will depend on a
range of case-specific factors, including the defendant's education or sophistication, the
complex or easily grasped nature of the charge, and the stage of the proceeding." Iowa
v. Tovar, 541 U.S. at 88,124 S.Ct. 1379,158 L.Ed.2d 209." Id. at ioo-loi.
Here, the panel properly inquired of Obermiller as to his education, the
complexity of the charges, the disadvantages of self-representation including the
potential of a death sentence and waiver of a claim of ineffective assistant of counsel,
71
and the stage of the proceeding, which was to begin immediately. The panel's extensive
questioning was justified in light of Obermiller's intention just sit and take punches, as
opposed to acting as his own attorney, despite facing a potential death sentence.
Obermiller's counsel also stated that Obermiller's decision was against their advice.
Based on the above, the panel could have found Obermiller's waiver was not
knowingly, intelligently, and voluntarily made. Obermiller, however, withdrew his
waiver and stated he wished to continue with counsel. As such, Obermiller's proposition
is without merit.
PROPOSITION OF LAW NO. 2: A CAPITAL DEFENDANT'SRIGHT TO A RELIABLE SENTENCE IS VIOLATED WHEN THETHREE JUDGE PANEL FAILS TO PROPERLY WEIGHAGGRAVATING CIRCUMSTANCES AND MITIGATINGFACTORS IN IMPOSING A SENTENCE OF DEATH. U.S. CONST.AMENDS. VII, XIV; OHIO CONST. ART. I¶¶ 9, i6.
In his second proposition of law, Obermiller argues the panel improperly found
the rape of Candace Schneider to be an aggravating circumstance as to Count 1, the
aggravated murder of Donald Schneider, thus tipping the scale in favor of death for the
aggravated murder of Donald Schneider. Obermiller also claims that the panel's review
of the mitigating factors was cursory and failed to give the proper weight and
consideration to a sentence less than death.
Obermiller's interpretation is incorrect and unsupported by the transcript, the
panel's Journal Entry of February 1, 2011 and Sentencing Opinion of March 10, 2011.
At pages 2-3 of the journal entry of February 1, 2011, the panel found Obermiller
guilty of the aggravated murder of Donald Schneider as set forth in Count 1, and the
following specifications: course of conduct, the purposeful killing of Donald Schneider
and Candace Schneider (Count i); murder to escape punishment for burglary (Count
72
18); retaliation for testimony, to prevent victim's testimony, and three separate felony
murder specifications, committed murder while committing/attempting to
commit/fleeing from aggravated robbery (Counts io and ii), kidnapping (Count 8), and
aggravated burglary (Count 13). As to Count 4, Obermiller was found guilty of the
aggravated murder of Candace Schneider and the rape of Candace Schneider (Count 12)
as one of the specifications.
In the Sentencing Opinion of March 10, 2011, the panel set forth a summary of
the merged counts and noted Obermiller pled guilty to the indictment and was convicted
of three aggravating circumstances that were alleged as parts of Count 1 and 4. (Pgs. 1-
2). The entry listed the aggravating circumstances as the purposeful killing of Donald
and Candace Schneider, committing the aggravated murders while committing the rape
of Candace Schneider and that the victims were witnesses and purposely killed to
prevent their testimony. (Pg. 2).
The panel's entry summarized these factors as to Counts 1 and 4 and failed to
specify the factors that applied only to Count i and those only to Count 4. Contrary to
l"VnIn1PVPr thP Tane of Candace Schneider was not an aggravating
factor applied to Count i, the aggravated murder of Donald Schneider, in weighing and
imposing the death penalty. At page 5 of the entry, the panel set forth the aggravating
circumstances as to Count 1, the aggravated murder of Donald Schneider with prior
calculation and design, as course of conduct and retaliation for testimony. (See also, T.
1369-1370,1372-1375)•
Based on the above, Obermiller's claim that the panel applied the rape of Candace
Schneider against him in imposing the death penalty for the aggravated murder of
Donald Schneider has no merit.
73
Obermiller's additional claim that the panel's review of the mitigating factors was
cursory and failed to give the proper weight and consideration to a sentence less than
death is also without merit. Obermiller waived mitigation. Prior to his waiver, the panel
ordered Obermiller to be evaluated by the Court Psychiatric Clinic for competency to
waive mitigation. Obermiller was interviewed by psychiatrist Abhishek Jain, M.D. and
Phillip J. Resnick, M.D. of the Clinic. The doctors concluded that Obermiller
understood the choice between life and death and has the capacity to knowingly and
intelligently decide not to pursue mitigation. The panel accepted Obermiller's decision
to waive mitigation.
In State v. Ferguson (2oo6), io8 Ohio St.3d 451, 844 N.E.2d 8o6, 20o6-Ohio-
1502, Ferguson argued that his death sentences violated the Eighth Amendment of the
United States Constitution because the trial court did not consider all of the evidence of
mitigation in his case. Id. ¶ 94. This Court rejected Ferguson's argument on the basis
thaY he was found competent to waive mitigation, and thus State v. Ashworth (1999)> 85
Ohio St.3d 56, 7o6 N.E.2d 1231, i999-Ohio-85, applied. Id. This Court held that the
t..:..iu vui ^a.,.,.....f was not n..1..,liffP.I tn hnild a mitigation case for him. Id. As in Obermiller,utc .....^
however, the Ferguson court found that, "nevertheless, the three-judge panel searched
the record for mitigating evidence and considered such mitigation before sentencing
Ferguson to death." Id.
This Court rejected the identical argument in State v. Mink (2004), iol Ohio
St.3d 350, 805 N.E.2d 1o64, 2004-Ohio-158o,
In proposition of law XVIII, Mink challenges his death sentence becausethe trial court did not consider all of the evidence of mitigation in his case.However, Mink was found competent to waive mitigation, and thus
Ashworth, 85 Ohio St.3d at 63, 7o6 N.E.2d 1231, applies. Also, the trial
74
court, sua sponte, searched the record for mitigating evidence andconsidered such mitigation before imposing the death sentence. Thus, wealso reject this claim.
Mink, 2004-Ohio-1580, ¶ ui.
Here, Obermiller was found competent to waive mitigation, and did so after a
thorough inquiry by the panel. As in Ferguson and Mink, while Obermiller's panel was
not required to build a mitigation case for him, the panel elicited mitigating information
during the R.C. 2945•o6 proceedings. As established by the record including the
Sentencing Opinion and Journal Entry of March 10, 2oii, the panel reviewed the record,
and set forth in the entry the mitigating factors found and considered by the panel.
PROPOSITION OF LAW NO. s: THE DEFENDANT'S RIGHTS TOA FAIR TRIAL, DUE PROCESS AND FREEDOM FROM CRUELAND UNUSUALLY PUNISHMENT ARE VIOLATED WHEN THETRIAL COURT ELICITS AND ALLOWS THE PERVASIVEINTRODUCTION OF EVIDENCE WHICH IS IRRELEVANT,INADMISSIBLE AND UNFAIRLY PREJUDICIAL. U.S. CONST.AMENDS. IV, V, VI, VII AND OHIO CONST. ART. I¶¶ 2, 5, 9, 16•OHIO R. EVID. 401,403, 404• O.R.C. ¶¶ 2945•03, 2945•o6.
Obermiller claims his right to a fair trial was violated as a result of the three judge
panel's failure to control the presentation of evidence. Obermiller's initial premise that
the panel must proceed as if the case was being tried to a jury is incorrect. Obermiller
quotes a portion of R.C. 2945•o6, as follows:
In any case in which a defendant waives his right to trial by jury and electsto be tried by the court under 2945•05 of the Revised Code, any judge ofthe court in which the cause is pending shall proceed to hear, try, anddetermine the cause in accordance with the rules and in like manner as if
the cause were being tried before a jury....
R. C. 2945•06.
75
The above-quoted portion of the statute is inapplicable to Obermiller, who
entered guilty pleas to aggravated murder. As such, the proceedings were controlled by
a different portion of R.C. 2945•o6, as follows:
If the accused pleads guilty of aggravated murder, a court composed ofthree judges shall examine the witnesses, determine whether the accusedis guilty of aggravated murder or any other offense, and pronouncesentence accordingly. The court shall follow the procedures contained insections 2929.03 and 2929.04 of the Revised Code in all cases in which theaccused is charged with an offense punishable by death.
R.C. 2945•o6.
By virtue of his guilty pleas, the three judge panel was required to determine
whether Obermiller was guilty of aggravated murder and other offenses. R.C. 2945•o6.
The panel was required to examine witnesses and hear any other evidence properly
presented by the prosecution in order to make a Crim.R. ii determination as to the guilt
of the defendant. State v. Green (1998), 8i Ohio St.3d ioo, 104, 689 N.E.2d 556, 1998-
Ohio-454; R.C. 2945•o6; Crim. R. 11(C)(3).
Obermiller complains that the panel elicited inadmissible and prejudicial
evidence. In support of this proposition, Obermiller points to the panel's discussion
regarding the State's attempt to introduce the testimony of a BCI computer forensic
specialist who examined computers and cell phones. (T. 511). After repeated objections
by Obermiller's counsel, the State withdrew the witness. (T. 537). Obermiller cites to the
panel's discussions wherein they agreed that they only consider relevant information,
and disregard what is not relevant. (T. 522).
Obermiller claims that the panel erroneously considered evidence that should
have been excluded in a jury trial. Obermiller's repeated attempts to present his case as
though the panel should have conducted the proceedings as if he did not plead guilty but
76
simply chose to be tried by the court should be summarily rejected. Obermiller entered
guilty pleas and the panel was statutorily required to examine the witnesses. R.C.
2945•o6.
Seven pages into his argument, Obermiller presents an example of the panel's
alleged error. The State offered a certified copy of Obermiller's prior conviction as an
exhibit to prove the repeat violent offender and notice of prior conviction specifications.
(T. 875). Obermiller's counsel stated Obermiller does not object, even though counsel
told him he could, because he hasn't testified yet. (T. 876-877). When asked what the
error was, counsel stated it should have been bifurcated, and he stands on what he says.
(T. 877). Based on this exchange, Obermiller claims the panel considered Obermiller's
trial to be procedurally different from what he claims R.C. 2945•o6 requires - to have
the case tried as though it were being tried before a jury. As discussed above, since
Obermiller entered guilty pleas, his case was not to be tried as though it were being tried
before a jury.
Moreover, the discussion between Obermiller's counsel, the panel, and eventually
nhPr,,,ii7Pr PXPParled the three statements quoted in his brief. The panel explained that
"as judges, we would consider it in the proper context of the evidence being presented
through the course of the trial, and I take it you are relying on our judicial capabilities to
do that." (T. 878). The discussion continued, including an exchange between the panel
and Obermiller ensuring that Obermiller understood he could object, that he is waiving
his objections, and that it was his desire not to object. (T. 879-881).
Obermiller also cites to the panel's questioning of Gina Milduscak, who was
called back to the proceedings at the panel request. Obermiller claims the panel elicited
irrelevant and prejudicial information regarding his mental health from her, although
77
she was not a mental health expert. To the contrary, the panel asked Ms. Mikluscak,
who lived with Obermiller as his girlfriend, about what she saw regarding prescriptions
Obermiller took for depression, his mood swings; information within Ms. Mikluscak's
personal knowledge and experience. The panel was required to examine witnesses; the
examination included eliciting mitigating evidence on Obermiller's behalf.
Obermiller claims the State improperly introduced evidence of a juvenile
conviction involving domestic violence in which his stepmother, Stacy Muzic, was the
victim. The exchange occurred during Ms. Muzic's testimony, having been called by the
panel, during which Ms. Muzic testified that while Obermiller lived with her, he had no
involvement with the police. When questioned about the allegation of domestic
violence, Ms. Muzic testified she did not remember, that Denny never put his hands on
her, that it doesn't even ring a bell. (T. 1348-1349). Contrary to Obermiller's claim, a
juvenile conviction was not introduced. Evidence as to Obermiller's incarceration while
a juvenile was already introduced. The panel questioned Ms. Muzic about where
Obermiller lived throughout his life, including that after he got in trouble, he went to
- at-aga i -^^_ (T. -^^^o3)^ . Obermiller's incarceration as a juvenile was included in thisr„r;^n„----- - -a- -- -
competency to waive mitigation evaluation report. (Exh. A-13).
Obermiller argues the panel's acceptance of the graphic photographs of Mr. and
Mrs. Schneider should have been limited. Obermiller fails to claim or explain how
admission of photographs as part of a plea hearing was plain error.
Obermiller claims the panel commented on his invocation of his right to remain
silent. During Detective Henderson's testimony, a judge on the panel who did not hear
the suppression motion asked the detective whether he had an opportunity to question
Obermiller. Detective Henderson stated Obermiller pretty much stated he didn't have
78
anything on his mind to talk about and stayed quiet. The judge stated he just wanted to
know if there were any statement they had not heard about. The judge's statement was
not a comment on Obermiller's silence, simply a clarification. Moreover, Obermiller
informed counsel that he did not want to object. (T. 1013).
Obermiller complains there was so much unchallenged hearsay by defense
counsel that the panel expressed their concern, but testimony went unchallenged only
because Obermiller refused to allow counsel to object. Throughout the entire
proceedings before the panel, Obermiller instructed counsel not to object - with the
exception of the BCI computer analyst's testimony. The panel's concern was not with
defense counsels' performance, but rather with Obermiller's continued refusal to allow
counsel to represent him despite a potential death sentence. The record is replete with
extended exchanges between the panel and Obermiller ensuring the Obermiller knew he
could object, that he was waiving his right to object, and that the failure to challenge
testimony was his choice. Throughout the proceedings, Obermiller made it clear that he
wanted to plead guilty to the indictment and not challenge the State's case, despite being
oivan everv onnorthinity to do so.
Finally, the exchange on the record involving Obermiller's objection to the
testimony of BCI computer forensic specialist demonstrates that Obermiller was aware
of the witnesses and their testimony, and in control of what would be objected to. When
faced with potentially embarrassing testimony as to the pornography found on a
computer that showed his proclivity for rape scenes, Obermiller permitted his attorneys
to object, resulting in the exclusion of this evidence.
PROPOSITION OF LAW NO. 4: THE RIGHT TO THEEFFECTIVE ASSISTANCE OF COUNSEL IS VIOI.ATED WHENCOUNSEL'S DEFICIENT PERFORMANCE RESULTS IN
79
PREJUDICE TO THE DEFENDANT. U.S. CONST. AMENDS. VI,
XIV; OHIO CONST. ART. I¶ io.
Obermiller claims that he received ineffective assistance of counsel. In sum,
Obermiller argues that despite his continued refusal to allow counsel to object, challenge
testimony, challenge exhibits, make opening and closing statements, present a defense,
present mitigating evidence, or otherwise cooperate in the proceedings, counsel should
have taken these actions, and their failure to do so constitutes ineffective assistance of
counsel.
In order to prevail on a claim of ineffective assistance of counsel, Obermiller must
show (i) his counsel's performance was deficient in that it fell below an objective
standard of reasonable representation, and (2) the deficient performance prejudiced his
defense so as to deprive him of a fair trial. State v. Smith (2000), 89 Ohio St.3d 323,
327, 731 N.E.2d 645, citing Strickland v. Washington (1984), 466 U.S. 668, 687, 104
S.Ct. 2052, 8o L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373,
paragraph two of the syllabus. To establish prejudice, Obermiller must show that there
exists a reasonable probability that, were it not for counsel's errors, the result of the
proceeding would have been different. State v. White (1998), 82 Ohio St.3d ib, 23, 693
N.E.2d 772; Bradley, at paragraph three of the syllabus.
Ohio Rules of Professional Conduct 1.2(a) requires a lawyer to abide by a client's
decisions concerning the objectives of representation and to consult with the client as to
the means by which the objectives are to be pursued. As noted in the Rule's official
comment, division (a) confers upon the client the ultimate authority to determine the
purposes to be served by legal representation, within the limits of the law and the
lawyer's professional obligations.
80
Obermiller has failed to show counsels' performance was deficient. While
Obermiller cites to instances of alleged ineffective assistance, he fails to note that after
each instance, he refused to allow counsel to ask any questions. Regarding Gina
Mikluscak's testimony, Obermiller's refusal to allow questions is found at T. 1278.
Regarding Detective Henderson's testimony, Obermiller informed counsel he did not
want to object. (T. 1013, 1047). As to hearsay conversations with Obermiller's father,
counsel stated that he had been instructed not to object to the hearsay, that he has
instructed Obermiller of his right to object. (T. 675-676). The panel went further, and
questioned Obermiller directly, who replied that he understood he had the right to
object to hearsay testimony, and choose not to. (T. 676). Obermiller stated that he has
instructed not to do so, and that's what he chose to do. (T. 676). The assistant
prosecutor stated that the statement were not offered for the truth of the matter
asserted, but to place in context what other witnesses did. (T. 677).
Regarding opening statements, counsel stated he was instructed to make no
comments. (T. 401). The panel questioned Obermiller directly, who stated it was his
desire that nn onening statements be made. (T. 402). Regarding closing statements,r
counsel stated that upon consulting with Mr. Obermiller, they had nothing to say. (T.
uii).
Regarding the mitigation phase, Obermiller refused a presentence report and
psychiatric evaluation. (T. 1392). Despite Obermiller's refusal, the panel ordered a
psychiatric evaluation to determine competency to waive mitigation. (T. 1392)• Any
decision to waive mitigation was not a tactical decision based on the advice of counsel;
Obermiller refused to cooperate as it relates to mitigation. (T. 1396). Counsel informed
the panel that after consulting with Obermiller, they will present no evidence, no
81
opening statement. (T. 1437, 1439). The panel questioned counsel, essentially placing
mitigating evidence on the record on his behalf. (T. 1440-1441).
The panel questioned Obermiller directly and extensively on his decision not to
present evidence in mitigation, including the opportunity to make an unsworn
statement. (T. 1441-1447). The panel read each mitigating factor to Obermiller, asking
if he understood. (T. 1447-1455)• After the panels' questioning, Obermiller stated he did
not want to answer one-word questions, that he didn't like any of them and thought they
were all idiots. (T. 1454). When given the opportunity to present mitigating evidence in
writing, counsel stated that after discussing this with Obermiller, they do not wish to do
so. (T. 1455)•
Obermiller's competency was undisputed. Obermiller was evaluated by the Court
Psychiatric Clinic, found to know the difference between life and death, and found to
have the capacity to knowingly and intelligently decide not to pursue mitigation if he
chooses. (T. 1430). Obermiller's expert, Dr. Connell, did a competency and Atkins
evaluation but did not prepare a report at defense's request. (T. 236). Obermiller is
okay.,A±h ±he contents being shared; the bottom line is that Obermiller was competent
and no Atkins issues were presented. (T. 236).
State and federal courts have repeatedly held that a defendant cannot order
counsel not to present evidence at trial or mitigation then later claim ineffective
assistance of counsel because counsel followed those instructions.
In Cowans v. Bagley, 624 F.Supp.2d 709, (S.D. Ohio 20o8), the District Court
rejected Cowans' claim that counsel was ineffective for failing to request independent
counsel to present the mitigation evidence they were forbidden by Cowan to present.
"Counsel have no obligation to violate a client's wishes. See e.g., Wood v. Quarterman,
82
491 F.3d 196, 203 (5th Cir.2007) ("Neither the Supreme Court nor this court has ever
held that a lawyer provides ineffective assistance by complying with the client's clear
and unambiguous instructions not to present evidence."); see also Strickland v. Lee, 471
F.Supp.2d 557, 6oo (W.D.N.C.2007) (noting that an attempt by counsel to introduce the
mitigation they had found would have violated restrictions set by the defendant and
possibly provided a ground for claim of ineffective assistance). Cowans v. Bagley, 624
F.Supp.2d 709, 776 (S.D. Ohio 20o8).
This principle was applied by the Sixth Circuit in Owens v. Guida, 549 F•3d 399
(6th Cir., Tenn. 20o8), in which the Sixth Circuit found Owens could not claim her
attorneys were ineffective when she refused to cooperate with the mitigation
investigation and presentation.
Schriro addressed the situation where a client thwarted his attorneys'efforts to present mitigating evidence, and it held that the defendant's"established recalcitrance" and persistent "undermining" of counsel'sefforts defeated his ineffective assistance claim. Id. at 1941-42. Schriromirrors cases from our own circuit that have held that a client whointerferes with her attorney's attempts to present mitigating evidencecannot then claim prejudice based on the attorney's failure to present thatevidence. See, e.g., Lorraine v. Coyle, 291 F.3d 416, 435 (6th Cir.2002);Coleman v. Mitchell, 244 F•3d 533, 545 (6th Cir.2001) ("An attorney'sconduct is not deficient simply for following his client's instructions.").
Owens, 549 F.3d at 4o6.
The Sixth Circuit found "Owens, of course, was constitutionally entitled to
impose these limits on her attorneys. But she cannot then claim that her attorneys were
"ineffective" for taking her advice." Id. The Sixth Circuit continued, citing multiple
opinions in support:
A defendant cannot be permitted to manufacture a winning IAC claim bysabotaging her own defense, or else every defendant clever enough tothwart her own attorneys would be able to overturn her sentence onappeal. Owens made the same decision as the Coleman and Schriro
83
defendants and must suffer the same consequences. Other cases from ourown circuit confirm that a client who interferes with her attorney'sattempts to present mitigating evidence cannot then claim prejudice basedon the attorney's failure to present that evidence. See Fautenberry v.
Mitchell, 515 F.3d 614, 624 (6th Cir.2008) (counsel is not ineffective forfailing to persuade client to cooperate); Lorraine, 291 F.3d at 435 ("Trialcounsel cannot be faulted for their client's lack of cooperation."); Coleman,
244 F.3d at 545 ("An attorney's conduct is not deficient simply forfollowing his client's instructions."). Other circuits have reached similarconclusions. See Gardner v. Ozmint, 511 F.3d 420, 427 (4th Cir.2007)(relying on client's non-cooperation when rejecting ineffective assistanceclaim based on attorney's failure to investigate mitigation evidence);Taylor v. Horn, 504 F.3d 416, 454-56 (3d Cir.2007) (relying on client'srefusal to allow attorney to call witnesses in rejecting ineffective assistance
claim); Roberts v. Dretke, 356 F.3d 632, 638 (5th Cir.2004) (holding that"when a defendant blocks his attorney's efforts to defend him, includingforbidding his attorney from interviewing his family members forpurposes of soliciting their testimony as mitigating evidence during thepunishment phase of the trial, he cannot later claim ineffective assistanceof counsel."); Bryan v. Mullin, 335 F•3d 1207, i223-24 (ioth Cir.2003) (enbanc) (counsel not ineffective for failing to present mental health evidencewhen client told counsel not to present any mental health evidence).
Owens, 549 F.3d at 412.
Obermiller has failed to show the counsels' performance was deficient.
Obermiller's claim of ineffective assistance of counsel when he consistently refused to
allow counsel to present any defense, despite counsels' clear desire and advise to do
otherwise, should be rejected.
PROPOSITION OF LAW NO. 5: THE DEATH SENTENCEIMPOSED ON OBERMILLER WAS UNRELIABLE ANDINAPPROPRIATE. U.S. CONST. AMENDS. VIII AND XIV; OHIOCONST. ART. I¶¶ 9 AND 16 AND O.R.C. ¶ 2929.05.
Obermiller argues that the record in this case merits the Court's independent
conclusion that the death sentence is not appropriate for him, based on the information
presented during the trial phase and within the Court Psychiatric Clinic's report
regarding competency to waive mitigation. In support, Obermiller cites the following
factors: his age of 28; the violent death of his mother when he was two; his father's
84
incarceration; his own incarceration beginning at age 15; his extensive history of drug
abuse; beatings and abuse by his grandfather, one of his victims, and depression.
It is well established that a competent defendant, fully advised of his right to
present mitigation evidence and the consequences of such failure, is free to decide not to
present mitigating evidence. State v. Ashworth (1999), 85 Ohio St.3d 56, 7o6 N.E.2d
1231. Obermiller chose to waive the presentation of mitigation evidence. Prior to
accepting his waiver, the panel ordered Obermiller to be evaluated by the Court
Psychiatric Clinic for competency to waive mitigation. Obermiller was interviewed by
psychiatrist Abhishek Jain, M.D. and Phillip J. Resnick, M.D. of the Clinic. In their
report, the doctors concluded that Obermiller understood the choice between life and
death and has the capacity to knowingly and intelligently decide not to pursue
mitigation. Thereafter, the panel accepted Obermiller's decision to waive mitigation.
In Ashworth, this Court held:
We now hold that in a capital case, when a defendant wishes to waive thepresentation of all mitigating evidence, a trial court must conduct aninquiry of the defendant on the record to determine whether the waiver isknowing and voluntary. The trial court must decide whether the defendantis comnetent and whether the defendant understands his or her rightsboth in the plea process and in the sentencing proceedings. See Wallace v.
State (Okla.Crim.App.1995), 893 P.2d 504, 512-513; Grasso v. State(Olda.Crim.App.1993), 857 P.2d 802, 8o6. The trial court must inform thedefendant of the right to present mitigating evidence and explain whatmitigating evidence is. The court must then inquire of the defendant, andmake a determination on the record, whether the defendant understandsthe importance of mitigating evidence, the use of such evidence to offsetthe aggravating 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 to waivethe right to present mitigating evidence, and, finally, the court must makefindings of fact as to the defendant's understanding and waiver of rights.See Koon v. Dugger (Fla.1993), 619 So.2d 246, 250.
Ashworth, 7o6 N.E.2d at 1237.
85
Finding the trial court complied with the above requirements, this Court held "In
Ashworth's case, the procedures put together by the trial court essentially followed those
set forth above. Since Ashworth was found competent, once he was advised of his right
to present mitigating evidence and the consequences of his failure to do so, he was free
to decide that he did not want mitigating evidence presented. The trial court was not
obligated to do any more." Id.
The record establishes that Obermiller was competent and fully advised of his
rights to present mitigation evidence and the consequences of failure to do so. The
panel questioned Obermiller about the above factors and continuing the mitigation
hearing for a month in order to allow him time to reconsider his decision. Obermiller,
however, remained steadfast in his decision not to present mitigating evidence. The
Court Psychiatric Clinic's report indicated that Obermiller, like Ashworth, acknowledged
his guilt, expressed some remorse, and chose to receive the death penalty rather than
spend the rest of his life, or the majority of it, in prison.
Moreover, the panel elicited mitigating testimony from witnesses, placed the
factors on the record and considered them in imposing a death sentence. The panel
concluded, however, that "[t]he mitigation pales in comparison to the brutal and callous
aggravating circumstances." (Sentencing Opinion and Journal Entry of March 10, 2011).
PROPOSITION OF LAW NO. 6: THE ACCUSED'S RIGHT TODUE PROCESS IS VIOLATED WHEN THE CUMULATIVEEFFECT OF PROSECUTOR MISCONDUCT RENDER'S THEACCUSED'S TRIAL UNFAIR. U.S. CONST. AMEND. XIV; OHIOCONST. ART. I ¶ i6.
Obermiller claims that multiple instances of prosecutorial misconduct during his
capital trial violated his due process rights. The touchstone of due process analysis as to
prosecutorial misconduct is the "fairness of the trial, not the culpability of the
86
prosecutor." Smith v. Phillips (1.982), 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78.
Initially Obermiller complains that the prosecutor elicited victim impact evidence
during the trial phase through Candace Flagg, which served to inflame the passions of
thejury.
Again, it must be noted that Obermiller entered guilty pleas to all counts and
specifications, proceeded under R.C. 2945•o6 with a three judge panel, and prohibited
defense counsel from presenting a defense or mitigation, with limited exception. As
Obermiller refused to permit counsel to ask questions or object, he has waived all but
plain error. (T. 450). Moreover, by virtue of his guilty pleas, Obermiller waived all
appealable errors at trial unrelated to the entry of the plea. See State v. Ketterer (2oo6),
ui Ohio St.3d 70, 855 N.E.2d 48, citing State v. Kelley (1991), 57 Ohio St.3d 127, 566
N.E.2d 658, paragraph two of the syllabus (a plea of guilty "effectively waives all
appealable errors" at trial unrelated to the entry of the plea); Crim.R. ii(B)(i).
The first claim of prosecutorial misconduct is Candace Flagg's testimony as to her
Grandmother Candace Schneider's love of camping, Winnie the Pooh and Obermiller.
Nr^ FP-stifed her^^randmother stayed in touch with Obermiller while he was in.._... _ Flagg --- -
prison, sent him care packages, and picked him up from prison, intending to buy him
some clothing.
As part of his claim of prosecutorial misconduct, Obermiller argues that the panel
picked up on Ms. Flagg's testimony, and questioned Obermiller's girlfriend about who
paid for camping and if Obermiller ever paid for beer. Obermiller omitted his
girlfriend's answers, which indicated Obermiller paid for his own beer and on a couple
of occasions, bought food and beer. (T. 176). Such testimony does not rise to victim
impact testimony.
87
Obermiller also notes the panel questioned Obermiller's stepmother about
Candace Schneider, eliciting testimony that she was a good person who would give you
the shirt off her back. Obermiller claims the testimony had the effect of portraying
"Candace" as a loving grandmother to him, while painting him as taking advantage of
Mrs. Schneider.
In State v. Lang (2011), 129 Ohio St. 3d 512, 954 N.E.2d 596, 2o11-Ohio-4215,
this Court rejected Lang's argument that the trial court erred in admitting limited
victim impact testimony at his capital trial, finding:
Victim-impact testimony does not violate constitutional guarantees. SeePayne u. Tennessee (1991), 501 U.S. 8o8, 825, 111 S.Ct. 2597,115 L.Ed.2d720. This court has permitted victim-impact testimony in limitedsituations in capital cases when the testimony is not overly emotional ordirected to the penalty to be imposed. See Hartman, 93 Ohio St.3d at 292,
754 N.E.2d 1150. In Hartman, the victim's mother briefly discussed thevictim's early life, her schooling, her close-knit family, and the victim'scontact with her family after she moved from North Carolina to Ohio. Id.The witness also testified, "[I]t has been an extremely bad time for us andwill be from now on. She'll never leave our heart." Id.
Like the testimony in Hartman, LaShonda's and Rashu's testimony wasnot overly emotional. Both witnesses briefly summarized the victims' lives,their schooling, their marriages and children, and their work history.Neither witness mentioned the effect that the victim's death had on theirfamilies. Moreover, neither witness mentioned or recommended a possible
sentence.
Lang, 2o11-Ohio-4215,111f237-238•
As in Lang, here, Ms. Flagg and Ms. Muzik's testimony consisted of brief
information as to what Candace Schneider did for Obermiller, that she was a nurturing
person who helped others, including her grandson. As in Lang and the cases therein,
the testimony was not emotional nor directed to the penalty to be imposed.
The second allegation of prosecutorial misconduct relates to the testimony of the
BCI forensic analyst, whom the State withdrew as a witness based on Obermiller's
88
repeated objections during her questioning by the panel. The panel questioned the
witness as to whether the computer seized from the Schneider's home was used during
the time period of August 7th through august i5th. (T. 1296). Upon the witness's answer
that she could not say that, the panel asked the prosecutor whether the witness had
anything relevant that would show the computers being used during that time. (T.
1296-1297). The prosecutor responded that there is a Facebook account that's
associated ---, and was cut off by the panel. (T. 1297).
The panel asked if Obermiller had a Facebook account, to which the prosecutor
stated yes, including pictures, all of which were turned over to defense counsel, that the
witness would testify to --- (T. 1297). Counsel objected and the prosecutor finished his
sentence --- regarding a certain nature that may be relevant to the way Grandma
Schneider died or in terms of being tied up, of a sexual nature. The prosecutor stated
that's what's being objected to, that the witness would be able to testify those items that
were downloaded prior to the arrest. (T. 1297-1298). Upon Obermiller's objections, and
after a short discussion, the panel stated they would not delve into the pornography
issues. (T. 1299). Obermiller fails to provide any argument whatsoever to support a
finding of plain or obvious error but for which, he would not have been sentenced to
death.
Obermiller claims the panel was influenced by the State's innuendo regarding the
information gleaned from the computer. Obermiller cites to the testimony of Detective
Henderson at T. 1027, prior to the above-cited testimony, in which the detective was
questioned about whether anyone examined Obermiller's body for bruising, needle
marks or other signs of drug abuse. (T. 1026-1027). A member of the panel stated there
was one picture on the exhibit in which Obermiller was nude. (T. 1027). A panel
89
member and the prosecutor corrected the judge, informing her that the evidence was
withdrawn. (T.loz7).
As this exchange occurred well before the above-described exchange involving
BCI witness, Obermiller's claim the panel was influenced by the State's alleged innuendo
regarding the information in the computer has no merit.
90
PROPOSITION OF I.AW NO. 7: THE INTRODUCTION OFGRAPHIC PHOTOGRAPHS WITH NO PROBATIVE VALUE BUTWHICH ARE HIGHLY PREJUDICIAL VIOI.ATES A CAPITALDEFENDANT'S RIGHT TO A FAIR TRIAL, DUE PROCESS, ANDA RELIABLE DETERMINATION OF GUILT AS GUARANTEEDBY THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTHAMENDMENTS TO THE UNITED STATES CONSTITUTION ANDARTICLE I, ¶¶ 9, io, AND 16 OF TI3E OHIO CONSTITUTION.
In this proposition of law, Obermiller claims that the introduction of graphic
photographs violated his right to a fair trial. In support, Obermiller argues that the
victims' autopsy photographs were cumulative and highly prejudicial, and should have
been excluded under Evid. R. 403 as unfairly prejudicial. Obermiller notes counsel did
not object, but fails to acknowledge that he refused to allow counsel to object during the
proceedings, with the exception of testimony regarding computer images.
Obermiller's claim should be rejected, as he has failed to demonstrate plain error;
that but for the alleged erroneous admission of the photographs, the outcome of the
proceedings would have been different. Obermiller entered counseled guilty pleas to all
counts, admitting his factual guilt; the panel's the admission of gruesome photographs
could not have affected the guilty verdict.
Also, by virtue of his guilty pleas, Obermiller waived aii appeaiabie errors at iiiai
unrelated to the entry of the plea. See State v. Ketterer (2oo6), iu Ohio St.3d 70, 855
N.E.2d 48, citing State v. Kelley (1991), 57 Ohio St.3d 127, 566 N.E.2d 658, paragraph
two of the syllabus (a plea of guilty "effectively waives all appealable errors" at trial
unrelated to the entry of the plea); Crim.R. il(B)(i).
The panel properly allowed introduction of the crime scene and autopsy
photographs. The crime scene photographs were necessary to establish essential
elements of the offenses including Obermiller's intent to kill his grandparents, to rape
91
his grandmother and to strip their home of anything of value, selling these items or
transporting them in his rental vehicle as he left town. The State was required to prove
the facts of each offense and the three judge panel was required to receive evidence in
order to make a Crim. R. ii determination as to Obermiller's guilt. Ketterer, 70.
In addition to pleading guilty and preventing his attorneys from objecting to
evidence, Obermiller's proceeding was presented to a panel of judges, not a jury. A
panel of judges is presumed to "consider only relevant, competent and admissible
evidence in its deliberations." Id. at 71. As Obermiller has failed to establish prejudice
or obvious error, his proposition of law should be rejected.
PROPOSITION OF LAW NO. 8: THE INTRODUCTION OF ADEFENDANT'S STATEMENT MADE DURING A CUSTODIALINTERROGATION AND WITHOUT MIRANDA WARNINGSVIOLATES A CAPITAL DEFENDANT'S PROTECTION AGAINSTSELF-INCRIMINATION AS WELL AS HIS RIGHTS TO A FAIRTRIAL, DUE PROCESS, AND A RELIABLE DETERMINATIONOF GUILT AS GUARANTEED BY THE FIFTH, SIXTH, EIGHTH,AND FOURTEENTH AMENDMENTS TO THE UNITED STATESCONSTITUTION AND ARTICLE I, ¶¶ 9, io, AND i6 OF THEOHIO CONSTITUTION.
Obermiller argues the trial court's denial of his motion to suppress was error and
--- y,CauGU guilty..,-that but for the erroneous ruling he wouid not nave- -, __a_a ,^..a+.,
The trial court conducted a hearing on Obermiller's motion to suppress three oral
statements made to members of the Licking County Sheriffs Office, the arresting
agency. Obermiller was not advised of his Miranda rights. Obermiller argues that he
was subjected to custodial interrogation and therefore, his statements should have been
suppressed. Obermiller is incorrect, as the trial court correctly held he was not subject
to interrogation.
92
Detective Sergeant Chris Slayman testified the Licking County Sheriff s Office was
notified that Obermiller was a suspect in a homicide and believed to be en route to the
area. (T. 59). Shortly thereafter, a male in a vehicle matching the suspect's vehicle was
observed in a parking lot, then driving to a gas station. (T. 6o). Sergeant Slayman
testified he followed the vehicle, observed a male exit the vehicle, and enter the gas
station's store, and exit carrying a bag. (T. 61-62). Sergeant Slayman relayed this
information to other deputies, who quickly responded (T. 6i, 64).
Sergeant Slayman observed the male begin to pump gas, drove his vehicle to the
gas pumps, and confronted Obermiller, who ran. (T. 63). After a brief foot chase,
Sergeant Slayman announced "taser, taser," Obermiller slowed and laid on the ground.
(T. 65). Other deputies arrived; Detective Barbuto handcuffed Obermiller and helped
him to his feet. Sergeant Slayman walked away, turning his attention to evidence
collection, including an item dropped by Obermiller. (T. 65-66).
Detective Chris Barbuto testified that once Obermiller was standing, he thanked
Obermiller for giving up, or stopping. (T. 88). Detective Barbuto walked away, but
heard Obermiller say something about dying today. (T. 89).
Chief Deputy Colonel Chad Dennis and Deputy Gus Moore remained with
Obermiller. Colonel Dennis testified that he heard Detective Barbuto thank Obermiller
for not running any further. (T. 104). Obermiller stated something to the effect that it
wasn't worth dying for, or l didn't want to die today. (T. 105). Colonel Dennis
responded with the comment, "yes, it's not worth dying for." (T. io5). Obermiller
stated, "I ain't worried, I killed my grandma three days ago." (T. io6). Colonel Dennis
testified that Obermiller's comment caught him off guard and he just responded "why?"
93
(T. io6). Obermiller answered "I was beating up my grandfather and she got in the
way." (T. 1o6).
It is well-established that the duty to advise a suspect of his constitutional rights
arises only when questioning by law enforcement officers rises to the level of a custodial
interrogation. State v. Gumm, 73 Ohio St.3d 413, 429, 653 N.E.2d 253, 1995-Ohio-24,
certiorari denied (1996), 516 U.S. 1177,116 S.Ct. 1275,134 L.Ed.2d 221.
Citing Rhode Island v. Innis (1980), 446 U.S. 291, ioo S.Ct. 1682, 64 L.Ed.2d
297, this Court has held that "to determine whether a suspect has been "interrogated,"
the heart of the inquiry focuses on police coercion, and whether the suspect has been
compelled to speak by that coercion." State v. Tucker (1998), 8i Ohio St.3d 431, at 436,
692 N.E.2d 171. The Tucker court found that "[t]his compulsion can be brought about
by express questioning, but also can be brought about by the `functional equivalent' of
express questioning, i.e., `any words or actions on the part of the police (other than
those normally attendant to arrest and custody) that the police should know are
reasonably likely to elicit an incriminating response from the suspect." Id., quoting
Innis, 446 U.S. at 300-301. "Subtle compulsion" is not to be equated with interrogation.
Id. 8i Ohio St.3d at 437, fn. 1. "Even if a suspect can be said to have been subjected to
"subtle compulsion," `[i]t must also be established that a suspect's incriminating
response was the product of words or actions on the part of the police that they should
have known were reasonably likely to elicit an incriminating response." Id., quoting
Innis, 446 U.S. at 303.
Applying the factors set forth in Innis and Tucker to this case, Obermiller was not
subject to express questioning requiring Miranda warnings. Additionally, there is no
evidence the Obermiller was subject to coercion or the functional equivalent of express
94
questioning, i.e., "any words or actions on the part of the police (other than those
normally attendant to arrest and custody) that the police should know are reasonably
likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446
U.S. 291, at 302.
Obermiller's first statement involved Detective Barbuto thanking Obermiller for
not running any further, and Obermiller saying he didn't feel like dying today. (T. 135)•
Barbuto's statement was not designed to bring any response from Obermiller. Colonel
Dennis' reply that it's not worth dying for was not designed to elicit "I ain't worried. I
killed my grandma three days ago." (T. 136). Statements one and two are clearly
outside the purview of Miranda. Obermiller was not subject to custodial interrogation,
nor were the officers' statements designed to elicit an incriminating response from him.
Obermiller's third statement involves the question "why" that Colonel Dennis followed
up with after hearing Obermiller's statement that he killed his grandmother. (T. 136).
The State asked that Obermiller's, response not be suppressed, although it did elicit "I
was beating up my grandfather and she got in the way." (T. 136). Colonel Dennis
testified that he was taken by surprise by Obermiller's statement, and just responded,
"why?" Colonel Dennis' question "why" was a natural response to Obermiller's
confession and did not rise to interrogation to warrant Miranda warnings. Also, the
officers testified throughout the suppression hearing that they were simply responding
to Maple Heights' request for assistance.
The Court denied the motion to suppress, finding the conversation was incident
to the arrest, not a custodial arrest. (T. 139). The Court stated the statements thanking
Obermiller for not running and that it's not worth dying for to be a conversation
incident to the contact they were having with Obermiller. The Court correctly concluded
95
that it becomes a question of whether the question "why," in response to Obermiller's
statement he killed his grandmother, is interrogation. (T. 139). The Court properly held
that Obermiller was not interrogated, and denied his motion to suppress his statements.
PROPOSITION OF LAW NO. 9: OHIO'S DEATH PENALTY LAW
IS UNCONSTITUTIONAL. OHIO REV. CODE ANN. ¶¶ 2903.01,2929.02, 2929.021, 2929.022, 2020.023, 2929.03, 2929.04,AND 2929•05 DO NOT MEET THE PRESCRIBED
CONSTITUTIONAL REQUIREMENTS AND ARE
UNCONSTITUTIONAL ON THEIR FACE AND AS APPLIED TO
OBERMILLER. U.S. CONST. AMENDS. V, VI, VIII, AND XIV;
OHIO CONST. ART. I, ¶¶ 2, 9, io, AND i6. FURTHER, OHIO'SDEATH PENALTY STATUTE VIOLATES THE UNITED STATES'
OBLIGATIONS UNDER INTERNATIONAL LAW.
This Honorable Court has repeatedly affirmed the constitutionality of Ohio's
death penalty statutes. See generally State v. Short (2011), 129 Ohio St.3d 36o, 952
N.E.2d 1121, 2oli-Ohio-3641, ¶ 136; State v. Poindexter (1988), 36 Ohio St.3d 1, 520
N.E.2d 568, syllabus; State v. Spisak (1988), 36 Ohio St.3d 8o, 82, 521 N.E.2d 8oo.
Specifically, this Court has held Ohio's death penalty scheme is not arbitrary and
does not violate the Eighth and Fourteenth Amendments. Short, ¶ 139; State v. Jenkins
(1984), 15 Ohio St.3d 164, 168-169, 15 OBR 311, 473 N.E.2d 264; State v. Mink (2004),
iol Ohio St.3d 350, 2004-Ohio-158o, 805 N.E.2d ro64.
This Court has also rejected claims that the death penalty violates various aspects
of international law.
Short's other international-law claims have all been rejected by this courtand/or other courts. See State v. Phillips (1995)> 74 Ohio St.3d 72, 101,
103-104, 656 N.E.2d 643; Buell v. Mitchell (C.A.6, 2001), 274 F.3d 337,370-372 (death penalty does not violate International Covenant on Civiland Political Rights ("ICCPR") or the "customary international law
norm"); People v. Perry (20o6), 38 Cal.4th 302, 322, 42 Cal.Rptr.3d 30,132 P•3d 235 (death penalty does *382 not violate ICCPR); Sorto v. State
(Tex.Crim.App.2005), i73 S.W.3d 469, 490(death penalty does not violateUnited Nations Convention against Torture).
Short, 20ir-Ohio-3641, ¶ 138.
96
This Court has repeatedly rejected attacks on Ohio's system of proportionality
and appropriateness review, and has found such review is not constitutionally
mandated. State v. Jenkins (1984),15 Ohio St.3d 164, i75-i78, i5 OBR 311,473 N.E.2d
264, State v. Steffen (1987), 31 Ohio St.2d iii, 123-125, 5o9 N.E.2d 383.
Obermiller's claims that Ohio's scheme is unconstitutional because of juror
confusion and an impermissible risk of death on those who exercise their right to a jury
trial are inapplicable to this case. Obermiller entered guilty pleas to all counts before a
three-judge panel.
PROPOSITION OF LAW NO. io: THE CUMUI.ATIVE EFFECT
OF TRIAI. ERROR RENDERS A CAPITAL DEFENDANT'S TRIALUNFAIR AND HIS SENTENCE ARBITRARY AND UNRELIABLE.U.S. CONST. AMENDS. VI, XIV; OHIO CONST. ART. I, ¶¶ 5,16.
Obermiller claims that the cumulative effect of trial error requires that his
convictions and death sentence be reversed. Having considered and responded to each
of Obermiller's claimed errors, none of the claimed errors, either individually or
cumulatively, warrant reversal and a new trial.
CONCLUSION
ecuulry requcOw L==a= u==JBased on the foregoing, the State of Ohio resp-L_"_
Honorable Court affirm Denny Obermiller's convictions and death sentences.
Respectfully submitted,WILLIAM D.CUY COUNT UTOR
AW DALLAH (oo63422)MARY H. McGRATH (#0041381)MARGARET A. TROIA (0082084)Assistant Prosecuting AttorneysThe Justice Center, Ninth Floor1200 Ontario Street, Cleveland, Ohio 44113(216) 443-78oo
97
CERTIFICATE OF SERVICE
The undersigned certifies that a true copy of the Merit Brief of Appellee State of
Ohio was forwarded by regular U.S. Mail this 31st day of August, 2012, to Linda E.
Prucha, Jennifer A. Prillo, and Shawn P. Welch, Assistant State Public Defenders, Office
of the Ohio Public Defender, 25o E. Broad Street, Suite 1400, Columbus, Ohio 43215
and via email to Kenneth Spiert, Section Supervisor of the Legal Division in the State of
Ohio Public Defenders Office at ken.s Word.ohio.gov.ae
SALE-H'S-.AW-ADALLAIi(o063422)Assistant Prosecuting Attorney
98
Rules of Prof. Cond., Rule 1.2
Baldwin's Ohio Revised Code Annotated Currentness
Ohio Rules of Professional Conduct
Client-Lawyer Relationship
Rule 1.2 Scope of representation and allocatton of authority between client and lawyer
(a) Subject to divisions (c), (d), and (e) of this rule, a lawyer shall abide by a client's decisions
concerning the objectives of representation and, as required by Rule 1.4, shall consult with the
client as to the means by which they are to be pursued. A lawyer may take action on behalf of
the client as is impiiediy authorized to carry out the representation. A lawyer does not violate
this rule by acceding to requests of opposing counsel that do not prejudice the rights of the
client, being punctual in fulfilling all professional commitments, avoiding offensive tactics, and
treating with courtesy and consideration all persons involved in the legal process. A lawyer shall
abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide
by the client's decision as to a plea to be entered, whetherto waive a jury trial, and whether
the client will testify.
(b) [RESERVED]
(c) A lawyer may limit the scope of a new or existing representation if the limitation is
reasonabte under the circumstances and communicated to the client, preferably in writing.
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer
knows is illegal or fraudulent. A lawyer may discuss the legal consequences of any proposed
course of conduct with a client and may counsel or assist a eiient In making a good faith effa i
to determine the validity, scope, meaning, or application of the law.
(e) Unless otherwise required by law, a lawyer shall not present, participate in presenting, orthreaten to present criminal charges or professional misconduct allegations solely to obtain an
advantage in a civil matter.
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