original - sconet.state.oh.us counsel in t ie penalty phase procedures, the court must conduct an...
TRANSCRIPT
ORIGINAL
IN THE SUPREME COURT OF OHIO ON noMPUTER_kLM
State of Ohio,
Plaintiff - Appe lee,
V.
Clarence Fry,
Defendant - Appellant.
CASE NO. 2006-1502
CAPITAL CASE
ERIT BRIEF OF APPELLANT, CLARENCE FRY
COUNSEL FOR AP ELLEE: COUNSEL FOR APPELLANT:
SHERRY BEVAN ALSH, ESQ. DAVID L. DOUGHTEN, ESQ.Summit County Pro ecutor Regis. No. 000284753 University Street, 7' Floor 4403 St. Clair AvenueAkron,.Ohio 44308- 680 Cleveland, OH 441 03-1 1 25(330)643-2788 (216) 361-1112
Facsimile: (216) 881-3928
GEORGE C. PAPPAS, ESQ.Regis. No. 00373741002 Key Building159 Main StreetAkron, Ohio 44308Phone: (330) 535-6185
TABLE OF CONTENTS
PAGES
TABLE OF CONT NTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
OVERVIEW OF C SE .........................................................
STATEMENT OF HE CASE ................................................... 3
STATEMENT OF HE FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARGUMENT ................................................................14
Proposition of Law I:
When the ial court becomes aware that the attorney-client relationship hasdeteriorate to the point that a capital defendant will not co-operate withcounsel in t ie penalty phase procedures, the court must conduct an inquirywith the de endant to determine basis for the problem. If the attorney-clientrelationshi has deteriorated to the extent that counsel can no longereffectively epresent the defendant, the court must remove defense counseland appoin new counsel for the penalty phase hearing . . . . . . . . . . . . . . . . . . . . . . . 14
Authorities elied Upon to Su ort Proposition of Law I
United State s v. Iles (C.A.6, 1990), 906 F.2d 1122 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
State v. Col man (1988), 37 Ohio St.3d 286 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
State v. Co ans (1999), 87 Ohio St.3d 68 . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . . . . . . . 16
State v. Wil ' ams, 99 Ohio St.3d 493 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17
Fi$h Amen ments to the United States Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Sixth Amen ents to the United States Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Eighth Ame dments to the United States Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Fourteenth mendments to the United States Constitution . . . . . . . . . . . . . . . . . . . . . . . 17
Proposition
A waiver oftrial is not vin the deathmade if thedissatisfactiathe death pe
Authorities R
m f Law II:
he presentation of mitigation evidence in the penalty phase ofilid unless the defendant is informed that the waiver will resultenalty. A waiver is not knowingly, intelligently and voluntarily
efendant is motivated into the waiver because of hisn with his trial counsel rather than a sincere desire to receiveialty ....................................................... 18
lied Upon to Support Proposition of Law II
State v. Ash orth (1999) 85 Ohio St. 3d 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20, 21
North Caroli a v. Alford 400 U.S. 25 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Bo _ kin v. Al bama, 395 U.S. 238 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Fi$h Amend ents to the United States Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Sixth Amend ents to the United States Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Eighth Amen ments to the United States Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Fourteenth endments to the United States Constitution . . . . . . . . . . . . . . . . . . . . . . . 21
Proposition Of Law III:
A capital de ndant's right to allocution before being sentenced ismandatory. here the sentencing court neglects this right, the subsequentsentence is v id or voidable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Authorities &lied Upon to Support Proposition of Law III
Lockett v. Oh'o, 438 U.S. 586 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Eddin s v. O lahoma, 455 U.S. 104 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
State v. Cam bell (2000) 90 Ohio St.3d 320 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
State v.Re n Ids (1998), 80 Ohio St.3d 670 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
State v. Mver (2002), 97 Ohio St.3d 335 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ii
State v. Rob rts (2006), 110 Ohio St.3d 71, 2006 Ohio 3665 . . . . . . . . . . . . . . . . . . . . . 24
Fifth Amen ents to the United States Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Sixth Amen ments to the United States Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Eighth Ame dments to the United States Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Fourteenth mendments to the United States Constitution . . . . . . . . . . . . . . . . . . . . . . . 25
A child wit ess under the age of ten years must be found incompetent totestify unles the record affirmatively establishes that the witness is able todistinguish 'ght from wrong and the truth from a Iie . . . . . . . . . . . . . . . . . . . . . . . . 25
Authorities elied U on to Su ort Proposition of Law IV
Evid.R.601( ) .........................................................25
State v. Fr ' er (1991), 61 Ohio St. 3d 247 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26,28
State v. Clar (1994), 71 Ohio St.3d 466 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : . 26
State v. All d (1996), 75 Ohio St. 3d 482 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
State v. Mc ill (1998), 83 Ohio St.3d 438 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : . . . 28
State v. Cok r (Sept. 16, 1999) Cuyahoga App. No. 74785 . . . . . . . . . : . . . . . . . . . . . . 28
State v. Mill w (June 15, 2001), Hamilton App. Nos. C-000524 . . . . . . . . . . . . . . . . . . 28
Fifth Amen ents to the United States Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Sixth Amend ents to the United States Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Eighth Ame ments to the United States Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Fourteenth endments to the United States Constitution . . . . . . . . . . . . . . . . . . . . . . . 28
iii
In a capital ase, the introduction of evidence of alleged prior acts of violenceunfairly pre
.udicial unless such acts are intrinsically related to the charged
offense. .............................................................29
Authorities elied Unon to Support Proposition of Law V
State v. Goin s (1996), 111 Ohio App.3d 840 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Evid.R.404 B) ........................................................29
R.C. 2945.5.......................................................29,30
Evid.R.402 ...........................................................30
State v. Edm nds (2000), 139 Ohio App.3d 298 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
State v. Cole an (1989), 45 Ohio St. 3d 298 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
State v. Broo (1988), 40 Ohio St. 3d 277 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
State v. C (1975), 43 Ohio St.2d 66 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
State v. Wilk nson (1980), 64 Ohio St.2d 308 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
State v. Hutt n (1990), 53 Ohio St.3d 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
State v. Jone , CA No. 95005 (1S1 App. Dist 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
State v. Jeffr Thompson (1987), 33 Ohio St. 3d 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Gets v. Mit hell (C.A. 6, 2006), 456 F.3d 575 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Fifth Amend ents to the United States Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Sixth Amen ents to the United States Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Eighth Amen ments to the United States Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Fourteenth A nendments to the United States Constitution . . . . . . . . . . . . . . . . . . . . . . . 34
iv
Propositior} of Law VI:
Statements to police, a hospital nurse and a victim-witness advocate theConfrontat on Clause under the Sixth Amendment to the United StatesConstitutio when it is reasonably foreseeable by the declarant that thestatements ould be used in a subsequent criminal prosecution . . . . . . . . . . . . . . . . 34
Authorities Relied U on to Supvort Proposition of Law VI
Sixth Amen ment to the United States Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Pointer v. T xas (1965) 380 U.S. 400 . . . . . . . . . . . . . . . . . . . . . . . 34. . . . . . . . . . . . . . . .
White v. Illi ois (1992), 502 U.S. 346 . . . . . . . . . . . . . . . . . . . . 34. . . . . . . . . . . . . . . . . . .
M land v. Crai (1990), 497 U.S. 836 . . . . . . . . . . . . . . . . 34. . . . . . . . . . . . . . . . . . . . .
Mattox v. U ited States (1895), 156 U.S. 237 . . . . . . . . . . . . . . . . . . . . . 35. . . . . . . . . . . .
Crawford v. Washin ton 541 U.S. 36 (2004) . . . . . . . . . . . . . . . . . . 35 36 41. . . . . . . . . , ,
United Stat s v. Franklin (C.A. 6, 2005), 415 F.3d 537 . . . . . . . . . . . . . . 35. . . . . . . . . . .
Davis v. W shin ton, and Hammon v. Indiana (2006), 547 U.S. _,126 .Ct2266 .......................................... 36,37,38,41
Akron v. H tton, Summit C.A. No. 22425, 2005 Ohio 3300 . . . . . . . . . . . . . . . . . . . . . 37
Evid.R.80 (3) ........................................................ 39
Potter v. B er (1955), 162Ohio St. 488 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
State v. Dun an (1978), 53 Ohio St.2d 215) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
State v. Ra on Ta lor (1993), 66 Ohio St. 3d 295 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
State v. S (2006),l 11 Ohio St.3d 186 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41,42
v
The mere tct that a defendant kills a person who had earlier sworn out acomplaint gainst the defendant for an offense is insufficient to sustain afinding of uilt for the R. C. §2929.04(A)(8) specification. The evidence mustprove beyo id a reasonable doubt that the defendant killed the victim becauseshe had sw rn out the earlier complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43Authorities elied Upon to Su ort Proposition of Law VI
R.C.§292 .04(A)(8) ................................................. 43,44
Fourteenth endment to the United States Constitution . . . . . . . . . . . . . . . . . . . . . . . 44
Inre Wins ,397 U.S. 358 (1970) ........................ 44.................
Davis v. Un ted States, 160 U.S. 469 (1895) . . . . . . . . . . . . . . . . 44. . . . . . . . . . . . . . . . . .
Jackson v. ir inia (1979), 443 U.S. 307 . . . . . . . . . . . . . . . . . . 44. . . . . . . . . . . . . . . . . .
State v. Je s (1991), 61 Ohio St. 3d 259 . . . . . . . . . . . . . . . . . . . 44. . . . . . . . . . . . . . . . .
United Sta s v. Talle , 194 F.3d 758, 765 (6th Cir. 1999) . . . . . . . . . . . 44. . . . . . . . . . . .
United Stat s v. Khalil, 279 F.3d 358, 368 (6th Cir. 2002) . . . . . . . . . . . . . . . 44. . . . . . . .
State v. Co a (2006), 109 Ohio St.3d 412, 2006 Ohio 2815 . . . . . . . 46. . . . . . . . . . . .
State v. Yar roueh, 95 Ohio St.3d 227, 2002 Ohio 2126 . . . . . . . . . . . . . . . . . . . . . . . . 47
Propositio4 of Law VIII:
In a charge of Aggravated Murder pursuant to R. C. §2903.01(A), wherethere is no vidence to establish that the intent to commit a purposeful killingdid not forri prior to a heated argument between the defendant and victim,the evidenc may not support the element of prior calculation and design. ...... 48
Authorities Relied Upon to Su ort Proposition of Law VIII
State v. Jac son (2001) 92 Ohio St.3d 436 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
State r (1997), 78 Ohio St.3d 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
vi
State v. Cott n (1978), 56 Ohio St.2d 8 . . . . . . . . . . . . . . 49. . . . . . . . . . . . . . . . . . . . . . . .
State v. Toth (1977), 52 Ohio St.2d 206 . . . . . . . . . 50. . . . . . . . . . . . . . . . . . . . . . . . . . . .
State v.Reed 1981), 65 Ohio St.2d 117 . . . . . . . . . . . . . 51. . . . . . . . . . . . . . . . . . . . . . . .
State v. Davi (1982), 8 Ohio App.3d 205 . . . . . . . . . . . . 51. . . . . . . . . . . . . . . . . . . . . . . .
State v. Cole (2001) 93 Ohio St.3d 253 . . . . . . . . . . 52. . . . . . . . . . . . . . . . . . . . . . . . . . .
Ta lor v. Mit hell, 296 F. Supp. 2d 784 (N.D. Ohio 2003) . . 52. . . . . . . . . . . . . . . . . . . . .
Jackson v. Vi inia (1979), 443 U.S. 307 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Proposition Of Law IX:
The trial co rt must ensure that a criminal defendant understand not onlythat he has t e right against self-incrimination, but also the right to testifyshould he or she so choose. The court must inquire at the close of the defensecase where a defendant has not testified if the defendant made a knowing,intelligent d voluntary waiver of his right to testify . . . . . . . . . . . . . . . . . . . . . . . . 54
Authorities R lied U on to Su ort Proposition of Law IX
Faretta v. Cal fomia, 422 U.S. 806 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54,55
Fourteenth A endment to the United States Constitution . . . . . . . . . . . . . . . . . . . . . . . 54
In re Oliver, 33 U.S. 257 (1948) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Fer son v. eor ia, 365 U.S. 570 (1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Rock v. Ark sas, 483 U.S. 44 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Ro ers-Be v Lane, 896 F.2d 279 (7th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Jones v. Barn s, 463 U.S. 745 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Hatris v. Ne York, 401 U.S. 222 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Malloy v. Ho an, 378 U.S. 1 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
vii
Nix v. White ide 475 U.S. 157 (1986) . : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Brooks v. Te essee, 406 U.S. 605 (1972) . . . . . . . . . . . . . . . . . . . . . : . . . . . . . . . . . . . 56
Schneckloth t. Bustamonte, 412 U.S. 218 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Johnson v. Z rbst, 304 U.S. 458 (1938) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Proposition f Law X:
O.R.C. § 29 9.04(A)(7) is unconstitutional where the same acts whichconstitute th charge of aggravated murder are also used to narrow the classof death elig ble defendants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Authorities elied U on to Su ort Proposition of Law X
R. C. 2903. 01 (B) ........................................................ 57
R.C. 2929.04A)(7) ........................ ....................... 57,60,61
R.C.2911.11 .......................................................57,58
Proffitt v. Fl rida, 428 U.S. 242 (1976) . . . . . . . . . . . . . . . . . . : . . . . . . . . . . . . . . . . . . . 58
Jurek v. Texa' _s, 428 U.S. 262 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . : . . . . . . . . . . . . 58
Pulley v. Harris, 465 U.S. 37 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Arave v. Cre ch, 507 U.S. 463 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Lowenfield v Phel s 484 U.S. 231> (1988) ............................... passim
Barclay v. Fl rida, 463 U.S. 939 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Walton v. Ar zona, 497 U.S. 639 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60, 63
State v. Hend rson (1988) 39 Ohio St.3d 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60, 63
State v. Bonn ll, 61Ohio St.3d 179 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
viii
Tuilae a v. lifornia, 512 U.S. 967 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Gregg v. Geo ia, 428 U.S. 153 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62, , 63, 64
Zant v. Ste h ns, 462 U.S. 462 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61,62
Proposition Of Law XI:
An indictme t which fails to set forth each and every element of the chargedoffense is in iolation of the Due Process Clause of both the State and FederalConstitution .........................................................65
Authorities elied U on to Su ort Pro osition of Law XI
In re Winshi , 397 U.S. 358 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Davis v. Uni d States,160 U.S. 469 (1895) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
R. C. §2929.4(A)(7) ....................................................65
A rendi v. ew Jerse , 530 U.S. 466 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66, 67
Jones v. Unit d States, 526 U.S. 227 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Rin v. Ari z na, 536 U.S. 584, 122 S.Ct. 2428 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Harris v. Uni ed States, 536 U.S.545 ( 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Joseph v. Co le, 469 F.3d 441 (6"' Cir. 2006), certiorari denied by Houk v.Jose 11, 2007 U.S. LEXIS 3056 (U.S., Mar. 19, 2007) . . . . . . . . . . . . . . . . . . . . 68
Biros v. Ba 1 , 422 F.3d 379 (6th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Mitchell v. E arza (Esparza II), 540 U.S. 12 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
United States v. Hooker, 841 F.2d 1225 (4th Cir. 1988) (en banc) . . . . . . . . . . . . . . . . . 69
United States v. Pupo, 841 F.2d 1235 (4th Cir. 1988) (en bane) . . . . . . . . . . . . . . . . 69,70
United States v. Spinner, 180 F.3d 514 (3d Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . 70
ix
United Stateo v. Du Bo, 186 F.3d 1177 (9th Cir. 1999) . . . . .
United State v. Zann er, 848 F.2d 923 (8th Cir. 1988) . . . . .
United State v. Yefsky, 994 F.2d 885 (15` Cit. 1993) . . . . . . .
State v. Ahe o (1984), 14 Ohio App.3d 254 . . . . . . . . . . . . . .
State v. Dille (1989), 47 Ohio St.3d 20 . . . . . . . . . . . . . . . . .
State v. He e (1983), 6 Ohio St.3d 475 . . . . . . . . . . . . . . .
State v. Wo iak (1961), 172 Ohio St. 515 . . . . . . . . . . . . . . .
State v. Mu h (1992), 65 Ohio St.3d 554 . . . . . . . . . . . . . . .
State v. Skat es, 104 Ohio St.3d 195, 2004 Ohio 6391 . . . . . .
State v. Bue er 110 Ohio St. 3d 403, 2006 Ohio 4007 (2006)
Fifth Amend ents to the United States Constitution . . . . . . .
Sixth Amen ents to the United States Constitution . . . . . . .
Eighth Amen ments to the United States Constitution . . . . . .
Fourteenth nendments to the United States Constitution . . .
Proposition Of Law XII:
. . . . . . . . . . . . . . . . . . . . 70
. . . . . . . . . . . . . . . . . . . . 71
. . . . . . . . . . . . . . . . . . . . 71
. . . . . . . . . . . . . . . . . . . . 71
. . . . . . . . . . . . . . . . . 71, 72
. . . . . . . . . . . . . . . . . . . . 72
. . . . . . . . . . . . . . . . . . . . 72
. . . . . . . . . . . . . . . . . . . . 72
. . . . . . . . . . . . . . . . . . . . 72
. . . . . . . . . . . . . . . . . . . 73
. . . . . . . . . . . . . . . . . . . . 73
. . . . . . . . . . . . . . . . . . . . 73
. . . . . . . . . . . . . . . . . . . . 73
. . . . . . . . . . . . . . . . . . . . 73
Where disti ct charges of the same indictment reflect that the grand jurymade incons stent findings as to the intent on the same actions of thedefendant, t e facts allowing the lesser intent finding are favorable to thedefendant a d must be provided to the defense in discovery . . . . . . . . . . . . . . . . . . . 74
Authorities &1ied Upon to Support Proposition of Law XII
Brady v. Mat iland, 373 U.S. 83 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74, 75
United Statesl v. Ba lgev, 473 U.S. 667 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Pennsylvanial
_
v. Ritchie, 480 U.S. 39 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
x
K les v. Whi le , 514 U.S. 419 (1995) . . . . . . . . . . . . . . 76. . . . . . . . . . . . . . . . . . . . . . . .
United States v. Bencs, 28 F.3d 555 (6th Cir.1994) . . . 76. . . . . . . . . . . . . . . . . . . . . . . . .
United States v. Short, 671 F.2d 178 (6" Cir. 1982) . . . . 77. . . . . . . . . . . . . . . . . . . . . . . .
State v. Gre ell (1989), 45 Ohio St.3d 4 (1989) . . 77. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Proposition Of Law XIII:
The state m^a conviction
, not charge a defendant with one theory of guilt and argue forn a second and inconsistent theory of the same act . . . . . . . . . . . . . . . 78
Authorities R lied Upon to Su ort Proposition of Law XIII
R. C. §2903.2(A)/(B) ................................................... 78
Smith v. Gro se, 205 F.3d 1045 (8th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78, 79
Thompson v. alderon, 120 F.3d 1045 (9th Cir. 1997) (en bane), vacated on othergroun s, 523 U.S. 538, 140 L. Ed. 2d 728, 118 S. Ct. 1489 (1998) .78, 79, 82, 83
Drake 762 F.2d 1449 (11th Cir. 1985) (en banc) . . . . . . . . . . . . . . . . . 78, 82, 83
Nichols v. Sctt, 69 F.3d 1255 (5th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
United States v . Kattar, 840 F.2d 118 (1st Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . 80, 81
Jacobs v. Sco 1, 115 S.Ct. 711 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
DeSon v. Se board Coast Line R. Co., 737 F.2d 1520 (11th Cir. 1984) ............ 81
Scarano v. Ce tral R. Co., 203 F.2d 510 (3d Cir. 1953) . . . . . . . . . . . . . . . . . . . . . . . . . 81
Allen v. Zuric Insurance Co., 667 F.2d 1162 (4th Cir. 1982) . . . . . . . . . . . . . . . . . . . . 81
Konstantinidi v. Chen, 626 F.2d 933 (D.C. Cir. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . 81
xi
Propositioo of Law XIV:
A jury ver ict of guilty must be based upon a unanimous finding of proofbeyond a r asonable doubt as to each element of the charged offense. Wherethe jury is ncouraged to find either one of two distinct acts as the basis forthe particu ar element, a subsequent conviction is invalid . . . . . . . . . . . . . . . . . . . . . 84
Authorities Relied Upon to Su ort Proposition of Law XIV
Richardson United States, 526 U.S. 813 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . : 84, 87
R. C. §2903
R. C. §2929
R. C. §2929
.211 ........................................................ 84
.04(A)(7) .................................................... 86
.04(A)(7) .................................................... 86
Schad v. Ar zona, 501 U.S. 624 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
State v. Jo son (1989), 46 Ohio St. 3d 96 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Propositioo of Law XV:
Where the rial court fails to merge convictions and capital specifications, theresultant s ntence is void or voidable as the weighing process is tainted withthe conside ation of improper aggravating factors . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Authorities Relied Upon to Su ort Pro osition of Law XV
R. C. §2929.03(F) ...... ................................................ 89
State v. Je ins (1984), 15 Ohio St.3d 164 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89, 90
State v. S i ak (1988), 36 Ohio St.3d 80 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
State v. Mit hell (1983), 6 Ohio St.3d 416 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Zant v. Ste hens (1983), 462 U.S. 862 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
xii
Barcla v. lorida (1983), 463 U.S. 939 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
R.C.§292 .04(A)(7) ....................................................90
R.C.§292 .04(A)(7) ....................................................90
Fifth to the United States Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Sixth to the United States Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Eighth to th United States Constitution . . . . . . . . . : . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Fourteenth mendments to the United States Constitution . : . . . . . . . . . . . . . . . . . . . . . 91
Propositior} of Law XVI:
A trial cou must merge capital specifications where warranted prior to thejury delibe ations on the appropriate penalty. Where two statutoryaggravato are merged, the jury must be instructed that it is to consideronly one st tutory aggravator in the weighing process . . . . . . . . . . . . . . . . . . . . . . . 92
Authorities elied Upon to Su ort Proposition of Law XVI
R.C.§292 .04(A)(7) ................................................... 92
R.C.§2929 04(A)(8) .................................................... 92
Fifth Amen ent to the United States Constitution . . . . . . . . . . . . . . . . . . . . . . . . . : . . 92
North Carolfna v. Pearce (1969), 395 U.S. 711 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Blockbur e v. United States (1932), 284 U.S. 299 . . . . . . . . . . . . . . . . . . . . . . . . . 92, 93
Albernaz v. United States (1981), 450 U.S. 333 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
R.C.§2941. 5 ...................................................... 93,94
State v. Ran e (1999), 85 Ohio St.3d 632 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93,94
Zant v. Ste ens (1983), 462 U.S. 862 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
Barclay v. F orida (1983), 463 U.S. 939 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
xiii
Proposition of Law XVII:
The failure t raise and preserve meritorious issues during a capital trialresults in the enial of a defendant's right to effective assistance of counsel. ..... 95
Authorities R lied Upon to Su ort Proposition of Law XVII
Rompilla v. B ard, 545 U.S. 374 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
ABA Guideli e 5.1 (B)(2)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
ABA Guideli e 10.8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
State v. Torre (1981), 66 Ohio St.2d 340 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
State v. Lott. 1990), 51 Ohio St.3d 160 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Old Chief v.U ited States, 519 U.S. 172 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
State v. Faute be (1995), 72 Ohio St.3d 435 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
State v. Post ( 1 987), 32 Ohio St.3d 380 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Payne v. Tenn ssee 501 U.S. 808 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Ring v. Arizo a, 536 U.S. 584 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
Blakely v. Wa hin ton , 542 U.S. 296 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
U.S. v. Salam ne, 800 F.2d 1216 (3rd Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
U.S. v. Dalv, 16 F.2d 1499 (9th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
U.S. v. Nell. 526 F. 2d 1223 (5th Cir. 1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
Adams v. Tex , 448 U.S. 38 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99, 100
Wainwright v. Witt, 469 U.S. 412 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
Strickland v. ashin on, 466 U.S. 68 (1984) . . . . . . . . . ... . . . . . . . . . . . . . . . . . . . . 101
xiv
Fifth to the nited States Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Sixth to the United States Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Eighth to th United States Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Fourteenth mendments to the United States Constitution . . . . . . . . . . . . . . . . . . . . . . 101
A criminal efendant possesses the constitutional right to counsel of hischoice. ere an African-American defendant requests at his arraignmentfor a death penalty charge that at least one of his counsel be of his sameheritage, t trial court must grant the request if such qualified counsel isavailable .............................................................102
Authorities elied U on to Su ort Pro osition of Law XVIII
United Stat s. v. Gonzales-Lo ez, U.S. _, 126 S.Ct 2557 (2006) .. 102, 102, 104
Wheat v. U 'ted States, 486 U.S. 153 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102, 103
Andersen v. Treat, 172 U.S. 24 (1898) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Powell v. A abama, 287 U.S. 45, 53 (1932) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Ohio Supre e Court Rule 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
Propositio# of Law XIX :
The death Ioccurring iappropriat
enalty may not be sustained where the cumulative errors thati in the trial deprived the defendant of a fair consideration of theness of the death penalty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
Authorities Kelied Upon to Support Proposition of Law XVIII
State v. DeMarco (1987), 31 Ohio St.3d 191 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
xv
Cooper v. So ders, 837 F.2d 284, 286 (6' Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . 105
Walker v. En^le, 703 F.2d 959, 968 (6' Cir.), cert. denied, 464 U.S. 951,cert. denied 4
Proposition
The death p
64 U.S. 962 (1983) . ......................................... 105
f Law XX:
nalty is unconstitutional as presently administered in Ohio
Authorities Rlelied Upon to Su ort Pro osition of Law XIII
Robinson v. alifornia, 370 U.S. 660 (1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
Coker v. Geo Mia, 433 U.S. 584 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
Furman v. G or ia, 408 U.S. 238 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Rhodes v. C a man, 452 U.S. 337, 361 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
Trop v. Dull s, 356 U.S. 86 (1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
Woodson v. orth Carolina, 428 U.S. 280 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
Commonwe th v. ONeal II, 339 N.E.2d 676, 678 (Mass. 1975) . . . . . . . . . . . . . 107, 109
Utah v. Pierr 572 P.2d 1338 (Utah 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
Shelton v. T cker, 364 U.S. 479 (1960) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
Ohio Adult P ole Authority v. Woodard, 523 U.S. 272 (1998) . . . . . . . . . . . . . . 109, 126
Lockett v. O 'o, 438 U.S. 586 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Ohio Le isl. erv. Comm'n., Capital Punishment (1961) . . . . . . . . . . . . . . . . . . . . . . . 108
Bailey, The eterrent Effect of the Death Penal for Murder in Ohio. A Time-Series Analy is 28 Cleve. St. L. Rev. 51, 68, 70 (1979) . . . . . . . . . . . . . . . . . . . . . . . . 108
Gre v. Geo ia, 428 U.S. 153 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Godfrey v. or ia, 446 U.S. 420 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
xvi
State v. Fox 69 Ohio St. 3d 183 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
Free v. Pete
^
s, 12 F.3d 700 (7th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
McMann v. Richardson, 397 U.S. 759 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
Powell v. A abama, 287 U.S. 45, 47 (1932) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
State v. Hes er, (1976) 45 Ohio St. 2d 71 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
United Stat s v. Cronic, 466 U.S. 648 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
Beck v. Ala ama, 447 U.S. 625, 638 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
Zant v. Ste ens, 462 U.S. 862 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Barcla v. F lorida, 463 U.S. 939 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112, 113
Ohio R. Cri . P. 11(C)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
United Stat s v. Jackson, 390 U.S. 570 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
Ohio Rev. ode §2929.03(D)(1) . . . . . . . . . . . . . . . . . . . . . . . : . . . . . . . . . . . . . . . . . . 113
Ohio Rev. ode §2929.04(B)(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
McCleske . Kem , 481 U.S. 279, 305 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . 113, 121
Strin er v. lack, 503 U.S. 222 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
Bo de v. C iforni 494 U.S. 370, 380-81 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
Penry Lypauali,au 492 U.S.302 .......................................... 114
Eddines v. mklahoma, 455 U.S. 104 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
Graham v. Qollins, 506 U.S. 461(1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
The Constitilitionalit of Im osin the Death Penalty for Felon Murde^ 15 Hous.L.Rev.356 375(1978) . ................................................ 115
State v. Williams, 74 Ohio St. 3d 569 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
xvii
State v. Ro' s 64 Ohio St. 3d 131 ( 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
Skinner v. klahoma, 316 U.S. 535 (1941) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
Ohio Revis d Code §2929.03(D)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
Ohio Revis d Code §2929.04 .... ........................................ 116
Lewis v. Je ers, 497 U.S. 764 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
Ma nard v. artwri h 486 U.S. 356, 362 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
Walton v. rizona, 497 U.S. 639(1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
Tuilae a v. alifornia, 512 U.S. 967 (1994) . . . . . . . . . . . . . . . . . . . . . . . . : . . . . . . . . 117
State v. Wo enstahl, 75 Ohio St. 3d 344 ( 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
Ohio Rev. ode §2929.03(D)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117, 118
Ohio Revis d Code §2929.021 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
Ohio Revis d Code §2929.03 ..... ....................................... 118
Pulle v. H xris. 465 U.S. 37 ( 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
Ohio Rev. ode §2929.05 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
State v. Ste en, 31 Ohio St. 3d 111 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
State v. Zuekn, 32 Ohio St. 3d 56 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119, 124, 125
State v. S f 32 Ohio St. 3d 95, 512 N.E.2d 598 (1987) . . . . . . . . . . . . . . . . . 119, 120
State v. Poi dexter, 36 Ohio St. 3d 1, 520 N.E.2d 568 (1988) . . . . . . . . . . . . . . . . . . . 120
State v. Spi ak, 36 Ohio St. 3d 80, 521 N.E.2d 800 (1988) . . . . . . . . . . . . . . . . . . . . . . 120
S aziano v. Florida, 468 U.S. 447 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
Evitts v. Lu e 469 U.S. 387 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
Fleming v. eor ia, 240 S.E.2d 37 (Ga. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
xviii
Ha es v. G or ia, 282 S.E.2d 208 (Ga. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
Chenault v. S nchcombe, 581 F.2d 444 (5th Cir. 1978) . . . . . . . . . . . . . . . . . . . . . . . 123
S ive v. Z t, 661 F.2d 464 (5th Cir. 1981) . . . . . . . . . . . . . . . . . . . . : . . . . . . . . . . . 123
Goodwin v. Balkcom, 684 F.2d 794 (11th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . 123
Westbrook v. Zant, 704 F.2d 1487 (11th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . 123
Tucker v. Z t, 724 F.2d 882 (11th Cir. 1984) . . . . . . . . . . . . . . . . . . . : . . . . . . . . . . . 123
Gra v. Luc s, 677 F.2d 1086 (5th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
Preiean v. lackburn, 570 F. Supp. 985 (D. La. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . 123
Conner v. eor ia, 303 S.E.2d 266, 274 (Ga. 1983) . . . . . . . . . . . . . . . . . . . . . . . , . . . 124
California . Brown, 726 P.2d 516 (Cal. 1985), rev'd on other rog unds, 479 U.S.538(1987) .........................................................................125
Ca lifornia . 538, 543 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
Gardner v. 49 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
In re WmsWI2 363 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126, 127
Cross v. Le t. 469, 120 N.E.2d 118 (1954) . . . . . . . . . . . . . . . . . . . . 127
Holland v. nited States, 348 U.S. 121 (1954) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
Scurt v. Uizited States, 347 F.2d 468, 470 (D.C. Cir. 1965) . . . . . . . . . . . . . . . . . . . . 127
State v. Cre shaw, 51 Ohio App. 2d 63 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
State v. Na ozn , 54 Ohio St. 2d 195 ( 1978), vacated on other grounds, NaboznyOhio, 439 .S.811(1978) ............................................... 127
State v. Se ff, 70 Ohio App. 2d 171 ( 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
Califomia . Terrmy 390 P.2d 381 (Cal. 1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
Denno, Is E ectrocution an Unconstitutional Method of Execution? The
xix
En ineerin df Death over the Century, 35 Wm. & Mary L. Rev. 551, 637-43,672-72 (1994......................................................... 129
Po er v. M 508 U.S. 931 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
The Pa uete aban 75 U.S. 677, 700 (1900) . . . . . . . . . . . . . . . . . . . . . . . . . . . 129, 136
Zschemig v. iller, 389 U.S. 429, 440 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
Clark v. Alle il 331 U.S. 503 (1947) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
United States v. Pink, 315 U.S. 203 (1942) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
Kansas v. Co orado, 206 U.S. 46, 48 (1907) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
The Nereide 13 U.S. (9 Cranch) 388, 422 (1815) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
Asakura v. C of Seattle, 265 U.S. 332, 341 (1924) . . . . . . . . . . . . . . . . . . . . . . . . . . 129
Filartiga v. P na-Irala, 630 F.2d 876 (2nd Cir. 1980) . . . . . . . . . . . . . . . . . . . . . . 130, 136
Forti v. Suar z-Mason, 672 F.Supp. 1531 (N.D. Cal. 1987) . . . . . . . . . . . . . . . . . . . . . 130
Frolova v. U'on of Soviet Socialist Re ublics, 761 F.2d 370 (7th Cir. 1985) ....... 130
Marbnr v. ladison, 5 U.S. 137 (1803) . . . . . . . . . .' . . . . . . . . . . . . . . . . . . . . . . . . . . 130
United States v. Smith, 18 U.S. (5 Wheat.) 153, 160-61 (1820) . . . . . . . . . . . . . . . . . . 136
William A. S habas, The Death Penalty as Cruel Treatment and Torture (1996) ..... 136
Fifth Amen ent to the United States Constitution . . . . . . . . . . . . . . . . . . . . . . PASSIM
Sixth Amend ent to the United States Constitution . . . . . . . . . . . . . . . . . . . . . . PASSIM
Eighth Ame ment to the United States Constitution . . . . . . . . . . . . . . . . . . . . . PASSIM
Fourteenth A endment to the United States Constitution . . . . . . . . . . . . . . . . . PASSIM
CONCLUSION ............................................................139
CERTIFICATE 0 SERVICE ............................................... 140
xx
APPENDIX.... ............................................................................... 141
Notice of Appeal ..................................................................... A-1Court En Setting Sentencing Date .............................................. A-2Sentenci Opinion of the Court ................................................... A-3Sentenci Joumal Form ............................................................ A-4Fifth Am ndment ............ .. ....... ...... .............. ..... ..... ............... .. . A-5Sixth Am ndment ..................................................................... A-5Eighth endment ................................................................... A-5Fourteen Amendment ...... ........................................................ A-6R.C. §29 9.03 ......................................................................... A-7R.C. §29 9.04 ...... ................................................................... A-8R.C. §29 9.05 .. ....................................................................... A-9R.C. §29 1.25 . ........................................................................ A-10R.C. §2945.59 ......................................................................... A 11ABA Gui eline 5.1(B)(2)(a) ......................................................... A-12ABA Gui eline 10.8 .................................................................. A-13Evid. R. 4 2 ... ......................................................................... A-14Evid. R. 4 3 ... ......................................................................... A-15Evid. R. 4 4(B) .......... ............................................................... A-16Evid. R. 8 3(2) ........................................................................ A-17Ohio Supr me Court Rule 20 ........................................................ A-18
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TABLE OF AUTHORITIES
CASES
Adams v. Texas (1980), 448 U.S. 38 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99, 100Akron v. Hutton, S mit C.A. No. 22425, 2005 Ohio 3300 . . . . . . . . . . . . . . . . . . . . . . . . . . . 37Albernaz v. United tates (1981), 450 U.S. 333 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93Allen v. Zurich Ins ance Co., 667 F.2d 1162 (4th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . 81Andersen v. Treat, 72 U.S. 24 (1898) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102A rendi v. New Je sey, 530 U.S. 466 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66, 67Arave v. Creech, 50 U. S. 463 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58Asakurav. Ci of eattle 265 U.S. 332 (1924) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128Barclay v. Florida( 983), 463 U.S. 939 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60, 90, 94Beck v. Alabama, 4 7 U.S. 625 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111Blakely v. Washin on , 542 U.S. 296 (2004) .. . . . . . . . . : . . . . . . . . . . . . . . . . . . . . . . . . . . 92; 93Blockbur er v. Uni d States (1932), 284 U.S. 299 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113Biros v. Baeley, 42 F.3d 379 (6th Cit. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68Bovde v. Californi 494 U.S. 370 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113Boykin v. Alabama 1969), 395 U.S. 238 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21Brady v. Maryland 397 U.S. 742 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75, 76Brooks v. Tennesse , 406 U.S. 605 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56United States v. Ba le (1985), 473 U.S. 667 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57California v. Bro , 726 P.2d 516 (Cal. 1985), rev'd on other re ounds, 479 U.S.538 (1987) .125California v. Tenv, 390 P.2d 381 (Cal. 1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128Chenault v. S nch ombe, 581 F.2d 444 (5th Cir: 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123Clark v. Allen, 331 U.S. 503 (1947) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129Coker v. Georeia, 4 33 U.S. 584 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106Commonwealth v. Neal II, 339 N.E.2d 676, 678 (Mass. 1975) . . . . . . . . . . . . . . . . . . . 107, 109Conner v. Georaia 03 S.E.2d 266, 274 (Ga. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124Cooper v. Sowders, 837 F.2d 284, 286 (6`h Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105Crawford v. Washi on, 541 U.S. 36 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 36, 41Cross v. Ledford, 1 1 Ohio St. 469, 120 N.E.2d 118 (1954) . . . . . . . . . . . . . . . . . . . . . . . . . . 127Davis v. United Sta es 160 U.S. 469 (1895) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44,65DeSong v. Seaboar Coast Line R. Co., 737 F.2d 1520 (11th Cir. 1984) . . . . . . . . . . . . . . . . . . 81Drake v. Kemp, 76: F.2d 1449 (11th Cir. 1985) (en banc) . . . . . . . . . . . . . . . . . . . . . . . 78, 82, 83Eddings v. Oklaho a, 455 U.S. 104, 113-114 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 114Esparza v. Mitchell 2002 FED App. 0385P (6th Cir., Nov. 5, 2002) . . . . . . . . . . . . . . . . . . . . . 68Evitts v. Lucev, 46 U.S. 387 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122Faretta v. Californi, 422 U.S. 806, 819 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54, 55Ferguson v. Geor i 365 U.S. 570 (1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55Filarti a v. Pena-Ir la, 630 F.2d 876 (2nd Cir. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130, 136Fleming v. Geor¢i 240 S.E.2d 37 (Ga. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
xxii
Forti v. Suarez-Ma on, 672 F.Supp. 1531 (N.D. Cal. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . 130Free v. Peters, 12 F 3d 700 (7th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110Frolova v. Union o Soviet Socialist Republics, 761 F.2d 370 (7th Cir. 1985) ............. 130Furman v. Georeia, 408 U.S. 238 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106-121Gardner v. Florida, 30 U.S. 349 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125Getsy v. Mitchell ( .A. 6, 2006), 456 F.3d 575 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33Godfrey v. Geor^ 446 U.S. 420 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108-114Goodwin v. Balkco , 684 F.2d 794 (11th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123Graham v. Collins, 506 U.S. 461(1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114Grav v. Lucas, 677 .2d 1086 (5th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123Gregg v. Georszia, 28 U.S. 153 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62, 63, 64Harris v. New Yor , 401 U.S. 222 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56Harris v. United S tes, 536 U.S.545 ( 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67Holland v. United tates, 348 U.S. 121 (1954) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127In re Oliver, 333 U. S. 257 (1948) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54Jackson v. Virginia (1979), 443 U.S. 307 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49, 53Jacobsv.Scott 11 S.Ct. 711 (1995) ........... ...........................:......81Johnson v. Zerbst, 04 U.S. 458 (1938) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
463 U.S. 745 (1983) .......................................... 55,56Jones v. United Sta es, 526 U.S. 227 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66Joseph v. Coyle, 469 F.3d 441 (6th Cir. 2006), certiorari denied by Houk v. Joseph, 2007 U.S.
LEXIS 305 (U.S., Mar. 19, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68Jurek v. Texas, 428 U.S. 262 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58Kansas v. Colorado, 206 U.S. 46 (1907) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129Konstantinidis v. C en, 626 F.2d 933 (D.C. Cir. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81Kyles v. Whitlev, 514 U.S. 419 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76Lockett v. Ohio 43 U.S. 586 (1978) ............................................. 23Lowenfield v. Phel s, 484 U.S. 231 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58-64Mallov v. Hog 3 8 U.S. 1 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56Marb v. Madiso 5 U.S. 137 (1803) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130Maryland v. Craig 1990), 497 U.S. 836 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34Mattox v. United S ates (1895), 156 U.S. 237 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34Ma nard v. Cartwr-^486 U.S. 356 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117Mitchell v. Esparza (Esparza II), 540 U.S. 12 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68Nichols v. Scott , 6 F.3d 1255 (5th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78Nix v. Whiteside 475 U.S. 157 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56North Carolina v. Iford (1970), 400 U.S. 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21North Carolina v. P arce (1969), 395 U.S. 711 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92Ohio Adult Parole uthori v. Woodard, 523 U.S. 272 (1998) . . . . . . . . . . . . . . . . . . . . 109. 126Old Chief v.United States, 519 U.S. 172 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97The Pa uete Hab , 75 U.S. 677 (1900) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129, 136Penrv v. Lvnaugl^ 92 U.S. 302 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : . . . . 114Penns lvania v. Ri hie, (1987), 480 U.S. 39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
xxiii
Pointer v. Texas, (1965) 380 U.S. 400 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34Payne v. Tennesse , 501 U.S. 808 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107Potter v. Baker (19 5), 162Ohio St. 488 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39Powell v. Alabama 287 U.S. 45 (1932) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103, 110Po ner v. Murra 08 U.S. 931 1993Y Y^ ) ................................. . . . . . . . . . . 129Pre'ean v. Blackb , 570 F. Supp. 985 (D. La. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123Proffittv. Florida, 28 U.S. 242 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58Pulley v. Harris. 465 U.S. 37 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106Rhodesv.Cha m ,452 U.S.337(1981) ........................................ 106Richardson v. Unit d States, 526 U.S. 813 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84,87Ring v. Arizona, 5 6 U.S. 584 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67, 98Robinson v. Califo ia, 370 U.S. 660 (1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106Rock v. Arkansas, 83 U.S. 44 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55Ro ers-Be v. Lan 896 F.2d 279 (7th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55, 56Rompilla v. Beard, 545 U.S. 374 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95Schad v. Arizona, 01 U.S. 624 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87Schneckloth v. Bus amonte, 412 U.S. 218 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56Scarano v. Central t. Co., 203 F.2d 510 (3d Cir. 1953) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81Scurry v. United S tes, 347 F.2d 468 (D.C. Cir. 1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127Shelton v. Tucker, 64 U.S. 479 (1960) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108Skinner v. Oklaho a, 316 U.S. 535 (1941) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115Smith v. Cnoose, 205 F.3d 1045 (8th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78, 79Spaziano v. Flori , 468 U.S. 447 (1984) . . . . . . . . . . . : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121Snivey v. Zant, 661 F.2d 464 (5th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123State v. Ahedo (1984), 14 Ohio App.3d 254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71State v. Allard (19 6), 75 Ohio St. 3d 482 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26State v. Ashworth 1999) 85 Ohio St. 3d 56 . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20, 21State v. Bonnell, 6 Ohio St.3d 179 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60State v. Broom (19 8 8), 40 Ohio St. 3d 277 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30State v. Buehner 110 Ohio St. 3d 403, 2006 Ohio 4007 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . 72State v. Campbell (2000), 90 Ohio St.3d 320 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23State v. Clark (199 ), 71 Ohio St.3d 466 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26State v. Coker (Sep . 16, 1999) Cuyahoga App. No. 74785 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28State v. Coleman ( 1 988), 37 Ohio St.3d 286 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16State v. Coleman ( 1 989), 45 Ohio St. 3d 298 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30State v. Colev (2001) 93 Ohio St.3d 253 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52State v. Conway (2006), 109 Ohio St.3d 412, 2006 Ohio 2815 . . . . . . . . . . . . . . . . . . . . . . . . . 46State v. Cotton (19 8), 56 Ohio St.2d 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49, 50State v. Crenshaw 1 Ohio App. 2d 63 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127State v. Cowans (1 99), 87 Ohio St.3d 68 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16State v. Currv (197 ), 43 Ohio St.2d 66 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31State v. Davis (198 ), 8 Ohio App.3d 205 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51State v. DeMarco ( 987), 31 Ohio St.3d 191 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
xxiv
State v. Dillev ( 1989), 47 Ohio St.3d 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71, 72State v. Duncan (1978), 53 Ohio St.2d 215) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39State v. Ra von Ta lor ( 1993), 66 Ohio St. 3d 295 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39State v. Edmonds (2 000), 139 Ohio App. 3d 298 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109State v. Fautenberry ( 1995), 72 Ohio St.3d 435 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97State v. Fox (1981), 86 Ohio St.2d 53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109State v. Frazier (19 1), 61 Ohio St. 3d 247 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26,28State v. Goines ( 19 6), 111 Ohio App.3d 840 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29State v. Grewell, ( 1 89) 45 Ohio St.3d 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77State v. Headley ( 1 83), 6 Ohio St.3d 475 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72State v. Henderson 1988) 39 Ohio St.3d 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60, 63State v. Hester, ( 19 ' 6) 45 Ohio St. 2d 71 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110State v. Hutton ( 199 0), 53 Ohio St.3d 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31State v. Jackson (20 1) 92 Ohio St.3d 436 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49State v. Jenks ( 1991 ), 61 Ohio St. 3d 259 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44State v. Jenkins (1984), 15 Ohio St.3d 164 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89,90State v. Johnson ( 1 89), 46 Ohio St. 3d 96 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87State v. McNeill ( 1 098), 83 Ohio St.3d 438 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28State v. Lott, ( 1990 , 51 Ohio St.3d 160 : . . . . . . . . . . : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96State v. Millow (J e 15, 2001) Hamilton App. Nos. C-000524 . . . . . . . . . . . . . . . . . . . . . . . . 28State v. Mitchell ( 1 83), 6 Ohio St.3d 416 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89State v. Murphy ( 1992), 65 Ohio St.3d 554 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72State v. Myers (2002), 97 Ohio St.3d 335 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24State v. Naboznv, 5 Ohio St. 2d 195 ( 1978), vacated on other grounds, Nabozny v. Ohio, 439
U.S.811(1 78) ....................................................... 127State v. Poindexter 1988), 36 Ohio St.3d 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120State v. Post ( 1987) 32 Ohio St.3d 380 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97State v. Rance (1991)), 85 Ohio St.3d 632 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93State v.Revnolds ( 1 998), 80 Ohio St.3d 670 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23State v. Roberts (206), 110 Ohio St.3d 71, 2006 Ohio 3665 . . . . . . . . . . . . . . . . . . . . . . . . . . . 24State v. Roias, 64 O io St. 3d 131 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116State v. Seneff, 70 hio App. 2d 171 ( 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127State v. Skatzes 10 Ohio St.3d 195, 2004 Ohio 6391 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72State v. Spisak ( 1988), 36 Ohio St.3d 80 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89State v. Stahl (2006 ,111 Ohio St.3d 186 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41,42State v. Steffen, 31 hio St. 3d 111 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119State v. Stumrof, 32 Dhio St. 3d 95 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119State v. Ta,^ ( 199 7), 78 Ohio St.3d 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49State v. Thompson 1987), 33 Ohio St. 3d 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33State v. Torres ( 1981), 66 Ohio St.2d 340 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96State v. Toth ( 1977 , 52 Ohio St.2d 206 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50State v. Wilkinson 1980), 64 Ohio St.2d 308 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31State v. Williams, 7 Ohio St. 3d 569 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
xxv
State v. Williams 99 hio St.3d 493 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17State v. Wogenstahl, 5 Ohio St. 3d 344 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117State v. Wozniak (19 1), 172 Ohio St. 515 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72State v. Yarbrou¢h, 9 Ohio St.3d 227, 2002 Ohio 2126 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47State v. Zuem 32 Oh o St. 3d 56 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119, 124; 125Strickland v. Washin ton, 466 U.S. 668, 687 (1984) . . . . . . . : . . . . . . . . . . . . . . . . . . . . . . . . 101Stringer v. Black, 503 U.S. 222 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113, 118Taylor v. Mitchell, 2 6 F. Supp. 2d 784 (N.D. Ohio 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
, 120 F.3d 1045 (9th Cir. 1997) (en bane), vacated on otherThompson v. Calderohgrounds, 523
Trop v. Dulles, 356Tucker v. Zant, 724 F
.S. 538, 140 L. Ed. 2d 728, 118 S. Ct. 1489 (1998) ....... 78, 79, 82, 83.S. 86 (1958) .............................................. 1062d 882 (11th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
Tuilae a v. Californi , 512 U.S. 967 ( 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60, 117United States v. Benc , 28 F.3d 555 (6th Cir.1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76United States v. Du B , 186 F.3d 1177 (9th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70United States v. Cron c, 466 U.S. 648 ( 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111United States. v. Dal , 716 F.2d 1499 (9th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99United States v. Fr lin (C.A. 6, 2005), 415 F.3d 537 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35United States. v. Go es-Lo ez, _U.S. _, 126 S.Ct 2557 (2006) .. ...... 102, 103, 104United States v. Hoo1 er, 841 F.2d 1225 (4th Cir. 1988) (en banc) . . . . . . . . . . . . . . . . . . . . . . . 69United States v. Iles ( .A.6, 1990), 906 F.2d 1122 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16United States v. Jacks n, 390 U.S. 570 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112United States v. Ka ttar, 840 F.2d 118 ( 1st Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80, 81United States. v. Nell 526 F. 2d 1223 (5th Cir. 1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99United States v. Pink, 315 U.S. 203 ( 1942) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129United States. v. Sal none, 800 F.2d 1216 (3rd Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99United States v. Shori, 671 F.2d 178 (6" Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77United States v. Smit , 18 U.S. (5 Wheat.) 153 (1820) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136United States v. S in er, 180 F.3d 514 (3d Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70United States v. Yefs 994 F.2d 885 ( 1S1 Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71United States v. Zann er, 848 F.2d 923 (8th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71Utah v. Pierre, 572 P. d 1338 (Utah 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107Walker v. Enele, 703 .2d 959, 968 (6' Cir.), cert. denied, 464 U.S. 951,
cert. denied 464 U.S. 962 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105Walton v. Arizona, 4 7 U.S. 639 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60, 117Wainwri2ht v. Witt ( 1985), 469 U.S. 412 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100Westbrooke v. Zant, 04 F.2d 1487 (11th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123Wheat v. United States, 486 U.S. 153 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102, 103In re Winship, 397 U. . 358 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44, 65, 126, 128Woodson v. North C olina, 428 U.S. 280 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106Zant v. Stephens (198 ), 462 U.S. 862 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 61, 62, 90, 93, 112Zschernig v. Miller, 3 9 U.S. 429 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
xxvi
PROVISIONS/STATUTES
R.C. §2903.01 ...R. C. §2903.02 . . .R. C. §2903.211(A)R.C. §2911.11 . . .R.C. §2929.021 ..R.C. §2929.03(D)(1R.C. §2929.03(F) .
........................................... ........ 48,57,60,71
......................................................66,74,78...........................................................84
.........................................................57,58..........117,118.............................................
) ......................................................... 113.....................................................22,89,100
R.C. §2929.04(A)( ) .. . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 57, 60, 61, 64, 65, 68, 71, 90, 92, 100R. C. §2929.04(A)( ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 43, 44,46, 90, 92R.C.2941.25 .... ......................................................... 93,94R.C.§2945.59 ............................................................ 29,30
OTHER AUTHORITIES
Fifth Amendment, nited States Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passimSixth Amendment, nited States Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passimEighth Amendment United States Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passimFourteenth Amen ent, United States Constitution : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passimABA Guideline 5.1 )(2)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95ABA Guideline10.8 ..........................................................95Evid. R. 402 .................................................................30Evid. R. 403 .................................................................31Evid. R. 404(B) ...........................................................29,31Evid. R. 802(3) ...............................................................89
xxvii
OVERVIEW OF CASE
Clarence Fry, r. admitted that he was the perpetrator of the offense in which he stabbed
his on-again off-again
of these wounds were
About two we
relation Tamela Hardison, three times with a knife in her apartment. One
fatal.
eks prior to the homicide, Ms. Hardison had filed a criminal assault charge
against Fry. The state contented the homicide was in retaliation for this filing or to prevent her
from testifying agains him in the future. Mr. Fry, in his statements to police officials, denied
this allegation. He s'd that he originally went over to her apartment to discuss a number of
stolen items. Fry said
and others. The actua
Hardison's kitchen to
the noodles because hi
with that knife.
The issues her
sought to remove his
mitigation. He presen
Instead, he wanted to
addition, the trial cour
allocution by the defei
make a statement. Hi:
The second are
of the only witness, a
Ms. Hardison was hooked on crack and had stolen many articles from him
fight leading to the murder started after Fry obtained a knife from
,ut noodles that he was eating at the time. Hardison had asked him to cut
was slurping them. When the two later began to argue, he stabbed her
;in center upon three main areas of trial. After the first phase verdict, Fry
ttorneys to replace them with new counsel. He waived his right to
[ed nothing and did not give an unsworn statement. He did not wish to die.
tot waste time and have his case reversed in the appellate process. In
t filed her R. C. §2929,03(F) opinion, before requesting a statement in
idant. The defendant apparently knew his death sentence before asked to
anger was apparent.
a includes the first phase culpability issues. These include the competency
oix year old boy who was the grandson of Ms. Hardison and the sufficiency
1
challenges to the ca ital specifications.
The final m jor area is the indictment itself The capital count of Aggravated Murder
included two speci cations; that it happened during an Aggravated Burglary and the killing of a
witness or potential witness. The indictment failed to specify the elements of the Aggravated
Burglary or even th statutory code. As the indictment included multiple separate, distinct and
inherently inconsist nt theories for the homicide and his very purpose for going into the house,
grand jury and due rocess violations are alleged based on the shotgun form of the indictment.
2
On August =
Clarence Fry. Spec
Murder in violatior
specifications for dc
felony) and R. C. §
Violent Offender SI
The indictm,
§ 2903.01(A) (prior
STATEMENT OF THE CASE
0, 2005, a Summit County Grand Jury capitally indicted defendant-appellant
fically, the grand jury charged Mr. Fry for one count of capital Aggravated
of R. C. §2903.01(B), felony-murder. This count included two
ath eligibility; R. C. §2929.04(A)(7) (principle offender in commission of
?-929.04(A)(8) (killing of a witness). The charge also included a Repeat
ecification pursuant to R. C. §2941.149.
;nt also included a second charge of Aggravated Murder in violation of R. C.
calculation and design). This charge did not include capital murder
specifications. The third count charged Fry with Involuntary Manslaughter in violation of R. C.
§ 2903.04(a); Coun Four, Murder in violation of R. C. § 2903.02(A)/(B); and Count Five,
Aggravated Burgl , in violation of R. C. § 2911.11(A)(1)/(2). All of the above counts included
a Repeat Violent O ender Specification pursuant to R. C. §2941.149.
The remaini g counts of the indictment included two counts of Domestic Violence in
violation of R. C. § 919.25(A); Intimidation of Crime Victim or Witness, R. C. §2921.04(B),
Menacing By Stalki g, R. C. §2919.25( C) and Aggravated Menacing 2903.21. The appellant
pleaded not guilty t all charges at his arraignment.
The court h ld a suppression hearing on February 17, 2006, pursuant to a defense motion
to suppress the defe dant's statements. The court denied the motion.
Prior to the eginning of trial, the prosecutor dismissed Count 3, Irivoluntary
Manslaughter and ount Eleven, Domestic Violence and Twelve Aggravating Menacing.
A jury trial egan on May 30, 2006. The defendant was found guilty of all counts and
3
specifications. The penalty phase hearing began June 26, 2007. Later that same day, the jury
recommended a se tence of death. The trial court set the penalty phase hearing for 1:15 pm on
July 11, 2006.
On July 11, 2006, the trial court filed her opinion required by R. C. §2929.03(F) at 1:07
p.m. In the opinio , the court accepted the jury's recommendation of death and found that the
aggravating factors outweighed the mitigation available. At the sentencing hearing, which
conunenced after e filing of the court's opinion, the court sentenced Fry to death.
The appell t filed a timely Notice of Appeal on. August 8, 2007. This Brief on the
Merits follows..
4
STATEMENT OF THE FACTS
The state ch ged Clarence Fry with aggravated murder in connection with the July 31,
2005, stabbing dea of Tamela Hardison. The State charged that the appellant entered the
residence of Ms. H dison and stabbed her multiple times because she had approximately one
week earlier, on Jul 18, 2005, filed assault charges against the appellant. The two were not
married, but had be n engaged in an ongoing relationship over the years.
The defense did not dispute that Fry killed Ms. Hardison. Following his arrest, Fry
confessed to police that he killed Ms. Hardison after an argument over property that he believed
she had stolen fro him. Fry maintained that he stabbed her only after she struck him with an
ashtray and he snap ed. In his statements Fry, who did not testify at trial, did not mention the
misdemeanor charg s as a motive. The defense argued that this specification did not form the
basis for the offens . The homicide was the result of an instantaneous anger resulting from a
dispute between th Fry and Hardison.
State's Case
In support o its case at trial the state called numerous witnesses many of whom provided
information conce ing an altercation between Fry and Hardison that occurred two weeks before
her death.
Victim's Mother
Ms. Knox, ardison's mother, testified that Tamela and Fry had a tumultuous
relationship. Knox recalled that Fry was extremely possessive about her daughter. He had told
Knox on several oc asions that Tamela did not need anyone but him in her life. According to
Knox, one time, no long before her death, she saw her daughter wearing a cast on her arm.
5
When she inquired a
932)
out it, Tamela told her that she and Clarence had been in an argument. (Tr.
Julv 18, Assault Incident
Akron Police
that late on July 18,
Officer Michael Rinn of the Domestic Violence Intervention Unit testified
005, he had been called to an apartment at 1113 Ackley in Akron to follow
up on a domestic dis ute report. (T. 940) When he arrived at about 1:00 am, he heard a woman
screaming. When R' and his partner knocked knocked on the apartment's door, Mr. Fry
answered, and coope ated with police as they put him in handcuffs and placed him in the cruiser.
Fry denied that the a tercation was anything other than a verbal argument. (Tr. 945) Police
initially charged Fry with assault and aggravated menacing, not domestic violence, because they
could not detennine he couple's relationship. (Tr. 947). As Fry was being arrested that night he
repeatedly asked the fficers to get his apartment key back from Hardison, but neither officer did
so. (Tr. 953)
Akron Police Officer Matthew Hackathorn was also on duty on the night of July 18,
2005, and was worki ig as Rinn's partner when they were called to Fry's apartment. While Rinn
dealt with Fry, Hack thorn interviewed the woman involved, who identified herself as Tamela
Hardison. Hackatho testified that Hardison was upset. Officer Hackathorn detected the odor
of alcohol on her bre th and speculated that she had been drinking, but she did not strike him as
intoxicated. (Tr. 987) She was crying and shaking. Her face looked somewhat swollen. (Tr.
960) He asked what ppened and she told him she and Fry were arguing and it turned violent.
She said he hit her 1 times and threatened to kill her with a leather punch. (Tr. 1004)
Hackathom photographed Hardison's face, as well as the leather punch tool. Hardison
6
refused medical tre
placed under arrest.
Richard Hat
report the July 18, 2
Fry in the upstairs a
on the night of July
Hatcher heard thum
"Bitch, you are go
1027).
ent. (Tr. 979) Hardison swore out a complaint against Fry, who was
(Tr. 981).
her was Fry's downstairs neighbor. He was the person who called 911 to
05, domestic dispute. According to Hatcher, Hardison had been living with
artment for approximately two to three months beforehand. (Tr. 1015) Late
18, 2005, Hatcher heard the couple arguing. The argument turned ugly.
ing, screaming and someone calling for help. When he heard someone say,
die," Hatcher called the landlord and reported the incident to 911. (Tr.
Hatcher toldl the 911 dispatcher that he could see the man holding a gun to the woman's
head. That claim
incentive to investi
firearms. (Tr. 952)
Assault Treatment
Amy Veney
Hardison after the J
for Violent Emerge
of the incident whic
s admittedly false. Hatcher lied to the operator to give the police extra
ate the dispute. (Tr. 1024-25) Police searched Fry's apartment and found no
a forensic nurse at Akron City Hospital, who testified that she treated Ms.
ly 18, 2005 incident. Trained in the DOVE program (Developing Options
cies), Veney took Ms. Hardison's medical history and recorded her account
as admitted into evidence against Mr. Fry. (Tr. 1042) According to
Veney's report, Ms. Hardison reported that Mr. Fry had tried to strangle her, leaving her neck
sore, making it diffi ult to swallow, and her voice hoarse. (Tr. 1054) Based on her examination,
Nurse Veney conta ted a Victim Assistance advocacy group on Ms. Hardison's behalf and
referred her to a ba ered woman's shelter. (Tr. 1068)
7
Shortly after t
contacted Ms. Hardisi
arranged to meet. Ac
to pursue charges aga
the victim assistance I
just been released froi
Ms. JuersivicY
violence. (Tr. 1104)
Mr. Fry's bond hearin
to a shelter, nor did st
Interim Week
David Michae
a unit there to Mr. Fry
other tenant, Richard :
time Rogers saw Fry 1
fact that someone had
Hardison had been in
Hardison any keys anc
Nikita Knox
Nikita Knox w
She testified that her r
picked-up her mother
Ze July 18" incident, victim assistance advocate Donnel Juersivich
m. Ms. Juersivich provided Tamela with a safety plan and the two
-ording to Ms. Juersivich, Ms. Hardison was afraid of Mr. Fry and planned
inst him. (Tr. 1095) Ms. Juersivich also testified that Ms. Hardison called
rotline the night before she died to say that she was upset because Fry had
n jail on a signature bond. (Tr. 1098)
did not know why the case against Fry was not charged as domestic
Ms. Juersivich did not know that Ms. Hardison had not appeared in court at
g, or that she intended to bail him out. (Tr. 1110) Ms. Hardison did not go
.e seek an order of protection against Mr. Fry. (Tr. 1116)
Rogers managed the apartment building at 1113 Ackerly Street and rented
(Tr. 1131) He heard about the disturbance on July 18, 2005 from his
3atcher. After Hatcher called him, Rogers also called the police. The next
vas on July 30, 2005. At that time he was concerned about his keys and the
taken some of his things. (Tr. 1141) Fry asked Rogers whether Ms.
he aparhnent. Rogers testified that he told Fry that he did not give Ms.
l then gave him a new set,
as Ms. Hardison's daughter and the mother of her three grand children.
iom became romantically involved with Fry sometime in 2005. She
from the hospital after the incident on July 18°i noting that her mother's
8
arm was bruised an encased in an air cast. (Tr. 1147, 1160) While Fry was in jail, he called
Ms. Knox and aske if she knew what had happened to his check. Knox testified that she did not
know what happen d to Fry's check. (Tr. 1148) Shortly after the incident on the 18`h, Ms. Knox
took her children o vacation. When they returned, she found that her apartment had been
broken into, the pla e had been ransacked and several items from rent-a-center had been taken.
(Tr. 1149, 1162-63
Day of Homicide
On July 31, 2005, Nikita Knox was working the moming shift. Her mother had agreed to
watch the kids. en she left early that morning, her mother, Ms. Hardison, was asleep on the
couch with Ms. Kn x's two-year-old daughter. Later that day she received a call that someone
had stabbed her mo her. (Tr. 1154) Her two-year-old told her that Clarence had done it.
Jasown Bivins
After the tri 1 court concluded that he was competent to testify, the state called
Hardison's six-ye old grandson, Jasown Bivins. (Tr. 1186-1208) Jasown was home playing on
the day his grandm ther was killed. Bivins testified that he was out in the yard with other
children when Fry pproached his mother's house carrying a bowl with a knife in it. (Tr. 1212)
The child approach d and told Fry not to go inside, where his grandmother was watching
television. Fry we t in anyway and, according to Bivins, he stabbed Hardison. (Tr. 1213) The
child followed Fry nside and heard him say, "Where are my clothes?" After Fry stabbed her,
Hardison told Bivi s to ca11911. The child grabbed a cordless phone and walked over to a
neighbor's house w ere he called for help. (Tr. 1225)
9
Maurice Vinson
Nine-year-
arrived. Vinson re
there. (Tr. 1234)
inside. (Tr. 1240)
fast. Jasown came
never seen the man
Tanya Magrell
Tanya Ma
recalled that she sa
back porch. Five
had been killed an
Reid Yoder
Akron City
the assault case ari
shortly after his arr
to July 25, 2005.
court reduced Fry'
of ever speaking to
court date. (Tr. 13
ld Maurice Vinson was outside playing with Jasown that afternoon when Fry
alled that Jasown asked Fry to give him some candy, then asked why he was
ry responded that he was going to cut potatoes and Jasown followed Fry
er about five minutes, Fry walked out looking very serious and walking
ut afterwards, crying and saying that Fry killed his grandmother. Vinson had
before that day and did not see him in the Courtroom. (Tr.1236)
11 was one of Nakita Knox's neighbors. July 31, 2005 was a Sunday and she
Mr. Fry talking to some children over by 824 Ina Court as she stood on her
inutes later, children came ranning over screaming that their grandmother
she called 911. (Tr. 1248-54)
rosecutor Reid Yoder testified that he was the prosecutor assigned to handle
ing from the incident that occurred on July 18, 2005. He met Fry in court
st and made him a plea offer, which Fry rejected. The matter was continued
Yoder was not in court on that day and Ms. Hardison did not appear. The
bail to a signature bond and he was released. (Tr. 1326) Yoder has no record
Ms. Hardison and he.believes that she was not notified by his office of the
9). The next court date was scheduled for August 4, 2005.
10
Mychal Brown
Detective My hal Brown testified that he knew Clarence Fry from high school. He spoke
with Fry on July 26, 005 at the police station, when Fry approached him about reporting a theft.
(Tr. 1371) Apparentl , Fry had lost all his stuff while he was locked up for something and he
was seeking to file a riminal complaint to get it back. Brown was left with the impression that
Fry blamed his girlfri nd for the theft. Brown told him where he needed to go to pursue the
complaint and gave m two dollars for the bus. (Tr. 1372-74)
Robin Brooks
Robin Brooks was one of Hardison's friends. She testified that she knew of Hardison's
romantic attachment t
times she concluded t
seemed to Brooks tha
with Brooks for three
(Tr. 1492) When H
a Fry. Brooks testified that after observing the couple together a couple of
iat they did not appear to be getting along. They argued often and it
Fry was always trying to override Hardison (T. 1490) Hardison stayed
days late in July. According to Brooks, Hardison planned on leaving Fry.
ara ison left the apartment she shared with Fry, Hardison took a microwave,
dishes, stereo and her
apartment to a friend
the items she sold. ("]
belonged to Fry.
Delbert Woodlev
Mr. Woodley
not well. (Tr. 1501) 1
with in the apartment
clothes. (Tr. 1495) Hardison took much of the stuff she removed from the
)f hers who owned a used furniture store, and that person gave her a deal on
r. 1498-1500) Brooks could not say whether any of the stuff Hardison sold
vas Robin Brooks boyfriend. He knew Hardison, and he also knew Fry but
e recalled that at some point late in July, 2005, Hardison came and stayed
ie shared with Brooks. At the time she was wearing a cast of some kind on
11
her arm. (Tr. 1502)
one evening some tir
Woodley denied kno
Crime Scene Investi
'5he seemed afraid. Woodley testified that he was sitting on his front porch
e shortly before July 31, when Fry walked by looking for Tamela.
ving where she was. (Tr. 1503)
ation Witnesses
Officer Mich el Yohe received information concerning a suspicious person in the crime
scene area. Arrived d found the victim at the scene. He noted that there had been no forced
entry, interviewed se eral witnesses and obtained a description of a suspect. (Tr. 1395)
Detective Adam Clar from the crime scene unit produced a videotape of the scene, while
another detective too photographs. (Tr. 1398; State Ex. 36) Detective Clark found a knife on
the floor by a bed, bu: did not test it for prints or any biological material. (Tr. 1409, 1427)
Blood and fingerprin evidence was obtained and preserved. (Tr. 1425)
Scientifice Evidence
Ms. Hardison was pronounced dead at the scene and transferred to the Summit County
Medical Examiner's 0 ffice. (Tr. 1440) Medical Examiner Lisa Kohler testified that she
conducted an autopsy on Ms. Hardison's remains. Ms. Hardison suffered four stab wounds. The
fatal wound was to th left side of her back, and nicked her aorta. That wound was fatal. (T.
1457) The toxicolo revealed the presence of a cocaine byproduct indicating that Hardison had
used the illicit subst ce not immediately before, but within hours of her death. (T. 1477) The
medical examiner coi ld not ascertain which stab wound Hardison suffered first. (T. 1485)
F's Post Arrest Sta ements
Akron police
transfer from custody
etective Michael Shaeffer testified that he interviewed Fry after Fry's
in West Virginia, where he was arrested. During that interview, Fry told
12
him that he did not h ve a knife with him when he went to Ms. Knox's apartment on Ina Court
on July 31, 2005, anthat he had only gone there to confront Ms. Hardison about all the property
he had lost. (Tr. 1611) Fry also told the detective that he loved Tamela but that when she did
crack, she was a"p e devil." (Tr. 1615) A recording and transcript of that interview was
introduced in eviden e against Mr. Fry at trial. (State Exs. 94 and 95)
Defense Case
Mary Reid w s one of Nikita Knox's neighbors. She was introduced to Ms. Hardison by
her daughter and als knew Mr. Fry and several other members of his family. (Tr. 1697) Ms.
Reid saw Hardison e day before Hardison was killed when Hardison. and her grand children
stopped in at a party Ms. Reid was hosting for a grandson. Reid did not notice a cast on
Hardison's arm that ay. (Tr. 1701) The next day, Ms. Reid recalled that sometime that morning
she saw Mr. Fry wal ing by her back door in the direction of Hardison's residence, which was
less than a block aw y. (Tr. 1703) She watched as Fry crossed the parking lot and noticed that
he was carrying a bo 1. She did not see a knife in the bowl. (Tr. 1709)
Penalty Phase
Prior to the c mmencement of the penalty phase, Fry filed a pro se motion forbidding
counsel from partici ating in that proceeding. Fry was upset with the jury verdict and the
performance of co sel (Tr. 1892) After a lengthy discussion, the trial court concluded that Fry
"understands compl tely the effect of failing to present mitigation evidence." (Tr. 1918).
Additional f cts will be discussed in the Propositions of Law to which they apply.
13
ARGUMENT
Proposition of Law I:
When the tri 1 court becomes aware that the attorney-client relationship hasdeteriorated o the point that a capital defendant will not co-operate withcounsel in th penalty phase procedures, the court must conduct an inquirywith the defe dant to determine basis for the problem. If the attorney-clientrelationship as deteriorated to the extent that counsel can no longereffectively re resent the defendant, the court must remove defense counseland appoint ew counsel for the penalty phase hearing.
On June 26, 2 06, the trial court held a hearing on a motion not filed but presented to the
judge in relation to th appellant's dissatisfaction with the case and the performance of his trial
counsel. The motion ecifically noted that Fry did not want to participate in the penalty phase
hearing. Specifically, the motion sought to forbid his counsel from participating in the
procedure, in addition to other request. (T. 1892)
As the result, e judge began an inquiry as to the voluntariness of the waiver of the
mitigation procedure. When she asked about counsel advising him, Fry answered:
THE DEFEN ANT: They didn't say much.
THE COURT: Well, of course, they were interested in questioning the witnesses,but - -
THE DEFEN ANT: That remains to be seen, but that's part of the reason why wedecided not to do all this. I would prefer to skip all this and get straight to the sentencething so we c go where we need to go so we can get back in here on appeal. You seewhat I'm sayi g?
The job that's een don here by these two guys, I don't know them personally, but if Iwas paying th m I would not pay them. Do you understand what I am saying? Because Iam not please with what they have done at all, so there's no reason for us to parade myfamily up here to do no mitigating things. There's no reason to waste these people'stime. Let's do what we gonna do, get some lawyers in here to appeal this thing, and carryon about our b siness."
14
(T. 1896-1897)
The trial ju
would be waiving
e indicated that if Fry continued to waive his penalty phase defense then he
e issue of ineffective assistance of counsel. Fry responded:
Then that wil
ineffective assistan
Defense co
issue would apply
(T. 1898) He agree
The defend
we got the safety n
was caused by not
witness specificatio
Defense co
phase hearing. Co
Defense co
in evidence, which
attorney making a s
Defense oo
spoke with counsel
Defense counsel di
were provided to th
The trial co
kill all of it then. I can't do that because that's one of the main basis is the
e of counsel,. . . (T. 1897)
nsel then apparently explained that the waiver of the ineffective assistance
nly to the penalty phase. The defendant then decided "Oh, well, then cool."
l again to waive everything.
nt then indicated his frustration with the jury decision and said, "Thank God
t called the Supreme Court and Court of Appeals." (T. 1900) His frustration
nly the conduct of counsel, but also on the finding of guilt for the killing of a
a, which he vehemently denied. (T. 1904, 1911)
nsel recited for the court the evidence and witnesses available for the penalty
nsel indicated that who testified was dependant on Fry. (T. 1909-10)
nsel then requested to have the court instruct the jury as to mitigation already
he court agreed to do. (T. 1921) Fry objected. Fry also objected to his
tatement to the jury of any kind. (T. 1957 -58)
nsel requested that he make the statement regardless of Fry's wishes. He
and afterward, agreed to allow counsel to make a, brief statement. (T. 1960)
1 make the argument on behalf of Fry. No witnesses or unswom statements
jm'Y•
abused its discretion by not making a sufficient inquiry into the extent of
15
the breakdown of the
been appointed. The
counsel is good evide
ttorney-client relationship. If warranted, substitute counsel should have
vaiver of mitigation by the appellant because of his frustration with his
ce of the extent of the problem.
The court was aware of problems between counsel and the client for some time. The
appellant had request d a black attorney at his arraignment on November 9, 2005. (T.8 of
November 9, 2005 tr script) The request was not granted as two white attorneys were
appointed. On April 8, 2006, there was a brief discussion of discord between counsel and Mr.
Fry, stemming from t e day before. Apparently, Fry, on April 18, 2006, accepted on of his two
defense counsel but n t the other. (T. 7 of April 18, 2006 hearing) The court made no inquiry
into the problem. Th April 17, 2006, transcript is silent on the issue.
Re lacement of Cou el Standard
An indigent d fendant * * * must demonstrate 'good cause' to warrant substitution of
counsel." United Stat s v. Iles (C.A.6, 1990), 906 F.2d 1122, 1130. A breakdown in the
attorney-client relafio ship will warrant substitution if the breakdown is so severe as to
jeopardize the defend t's right to effective assistance of counsel. State v. Coleman (1988), 37
Ohio St.3d 286, 292. ee, also, State v. Cowans (1999), 87 Ohio St.3d 68, 73, 1999 Ohio 250.
The trial court's decisi n is reviewed under an abuse-of-discretion standard. Iles, 906 F.2d at
1130-1131, fn. 8.
In State v. Wil iams, 99 Ohio St.3d 493, 2003-Ohio-4396, this Court addressed an
analogous situation. I
him eligible for the de
result, defense counsel
. Williams, the defendant, frustrated after a jury verdict of guilt leaving
th penalty, punched defense counsel at the time of announcement. As the
moved to withdraw. The trial court denied the request. This court noted
16
that:
By denying thad very littlthey worriedlanguage wh
[**P139] Thia capital casecharacter inattomeys into represent
Because of the abov
Id. 513.
Here, the bre
the appellant so the
not a "volunteer" sit
motions, the trial court put counsel in an untenable position. Theycommunication with Williams, they were frightened of him, andat their fear would be revealed to the jury through their body
n at the defense table with Williams.
is particularly damaging to a defendant during the penalty phase ofwhen counsel must humanize the defendant for the jury, show hise best light available, and bring his good qualities to the fore. Theis case recognized--and demonstrated--that they could not continuelliams zealously.
the failure to allow counsel to withdraw constituted an abuse of discretion.
down of the attorney-client relationship lead the waiver of mitigation by
is Court and other reviewing courts could review the evidence. This was
ation. The waiver was the act of a man who believed that he had not
committed a death el^igible offense.
The failure o
breakdown which lit
realistically conside
Fry was properly re
Amendments to the
the judge to remove counsel, or at least inquire into the basis of the
rally resulted in a defendant giving up his ability to have the jury
one of the life options was an abuse of discretion. The failure to ensure that
sented was in violation of the Fifth, Sixth, Eighth and Fourteenth
nited States Constitution.
17
A waiver of ttrial is not vin the deathmade if the ddissatisfactiothe death pe
This Court ha
presentation of mitig
where a criminal def
defendant has kno
In this instanc
court improperly acc
attorney-client privil
(T. 1896-97) See Pro
In addition, n
had acquitted him of
the indictment charge
Hardison during an
that he killed her bec
appellant's entire voi
believe that the jury fi
sentenced to death be
And them's t
e presentation of mitigation evidence in the penalty phase ofid unless the defendant is informed that the waiver will resultenalty. A waiver is not knowingly, intelligently and voluntarilyfendant is motivated into the waiver because of hiswith his trial counsel rather than a sincere desire to receive
alty.
held that a capitally charged defendant has the right to waive the
tion. However, before a trial court allows such a waiver, as in all situations
dant waives his or her protections, assurances must be made that the
gly, intelligently and voluntarily waived the particular right.
, the appellant waived his right to present mitigation. However, the trial
pted the waiver. The court failed to inquire into the breakdown of the
e when it was brought directly to her attention at the time of the waiver.
osition of Law I.
one explained to the appellant that he was death eligible even if the jury
he killing of a witness specification. R. C. §2929.04(A)(8) Count One of
two specifications, alleging in short that the appellant had killed Ms.
gravated Burglary while being the actual killer.R. C. §2929.04(A)(7) and
use she had filed a domestic violence complaint against him. The
ed displeasure was based upon the latter specification. He could not
und him guilty of that specification. He could not believe that he could be
ause of a misdemeanor.
e dumbest 12 people I ever seen in my life. There's no way I can
18
have my fami y come up here and say nothing to these people. We call them "thedummy doze ." They say I killed Tammy because of a misdemeanor. They found12 people to s y that?
(T. 1899-1900)
During the As worth colloquy with the judge, the appellant Fry continued to reiterate that
he could not believe e was facing the death penalty over a misdemeanor. (T. 1903, 1904) At no
time during this waiv r exchange did the court or counsel explain to him the legal ramifications
of the first phase ver 'ct. The R. C. §2929.04(A)(7) specification verdict was not mentioned. It
was not mentioned th t the jury found that he entered the residence to commit a felony, not a
misdemeanor. It was not mentioned to him that the A(7) specification alone was sufficient to
allow a finding of de th by the jury, even if the A(8) had been dismissed. It wasnot mentioned
that this Court often r-weighed mitigation evidence where an invalid specification had been
considered and still f und death to be the appropriate sentence even, with one less statutoty
aggravating circumst ce. In sum, without an understanding or explanation of the first phase
findings, the appellan could not have made a knowing intelligent plea.
In addition, F rested his hopes on the appellate system. Apparently no one took the
time to explain the ex emely low reversal rate by appeals courts in capital litigation. If Mr. Fry
was going to waive itigation which would by definition result in his receiving the death
penalty, he should ha e had the appellate process explained. In short, the judge should have
ordered a continuanc , let all parties cool down and discuss the matter rationally, before moving
on with the hearing. f it were necessary to replace counsel, it should have been facilitated.
Ashworth Standards
The standards Ifor waiving one's mitigation in a penalty phase hearing were set forth by
19
this court in State v. shworth (1999) 85 Ohio St. 3d 56, 1999 Ohio 204. In Ashworth, this
Court held at p. 62:
...in a capit case, when a defendant wishes to waive the presentation of allmitigating ev'dence, a trial court must conduct an inquiry of the defendant on therecord to dete ine whether the waiver is knowing and voluntary. The trial courtmust decide hether the defendant is competent and whether the defendantunderstands h's or her rights both in the plea process and in'the sentencingproceedings. he trial court must inform the defendant of the right to presentmitigating ev'dence and explain what mitigating evidence is. The court must theninquire of the defendant, and make a determination on the record, whether thedefendant un erstands the importance of mitigating evidence, the use of suchevidence to o set the aggravating circumstances, and the effect offailing topresent that e idence. After being assured that the defendant understands theseconcepts, the ourt must inquire whether the defendant desires to waive the rightto present mit gating evidence, and, finally, the court must make findings of factas to the defe dant's understanding and waiver of rights.
(Emphasis added)
Here, the trial
appellant understood
court failed the above standard in that the court failed to ensure that the
e concepts behind death penalty sentencing. As noted above, the
defendant clearly did Inot understand the process. His decision to waive mitigation was largely
based upon his errone
allegation. However,
his rights. Fry believ
He believed that a coi
one explained to him
specification would h
For that matter, no on
cases, or the appellate
ous believe that he was facing death row for a misdemeanor related
:he trial court failed to ensure that Fry made a knowing intelligent waiver of
:d that death would result only from the killing of a witness specification.
n-t of appeals or this Court would reverse that specification. However, no
that even if he had been acquitted of that specification, the A(7)
rve left him death eligible, even if the A(8) specification were dismissed.
e explained to him that there is no state court of appeals in death penalty
process in general.
20
Present Facts
Following e jury's finding of guilt on the charges of Aggravated Murder and the capital
specifications, the a pellant sought to waive his right to present mitigation. The court did follow
the Ashworth holdi g. The court found Fry to be competent and fully explained his mitigation
rights.
However, th court failed to make an inquiry into the problems that Fry was having with
defense counsel. Se Proposition of Law I. This was not a typical state assisted suicide case.
Fry wanted to live. e believed that the jury had erroneously convicted him of killing of a
witness. He wanted to move the process along. His dissatisfaction with defense counsel was a
major reason for the waiver. The judge failed to address that issue or inquire as to that issue at
all.
The constitu ional standard for determining the validity of a waiver of an essential
constitutional right i whether the plea represents a voluntary and intelligent choice among the
altemative courses f action open to the defendant. North Carolina v. Alford (1970), 400 U.S.
25; Bo kin v. Alab a(1969), 395 U.S. 238. The trial court's acceptance of a waiver in this
instance was in viol tion of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United
States Constitution.
21
A capital defmandatory.'sentence is v
^ndant's right to allocution before being sentenced ishere the sentencing court neglects this right, the subsequentd or voidable.
In the present
R.C. §2929.03(F) pri
did permit Fry to m
This was a classic ex
it would not be consi
The sentencin
filed at 1:07 p.m. on
opinion. See Appendi
hearing that the opin
ase, the trial court prepared the sentencing opinion written pursuant to
r to allowing the appellant her right to allocution. Although the trial court
a statement, the sentencing opinion had already been prepared and filed.
ple of form over function. It would not matter what the appellant said, as
ered.
hearing transpired in the afternoon of July 11, 2006. The opinion was
at same date according to the time stamp on the R. C. §2929.03(F)
p. 3 . Consistently, the court stated from the bench during the sentencing
n had been filed prior to the proceeding.
eviewed the - - first of all, in reference to the death sentence in thishas issued an opinion today adopting the jury's recommendationof death in this case.
The fact that the courtl had made up her mind before requesting allocution rendered the procedure
moot, in violation of
This Court ha
merely a perfunctory
iate sentence. If the sentencing opinion is already prepared, the court is
defendant to argue and/or present mitigation or convince the judge that
ry's federal and state constitutional protections.
long emphasized the importance of allocution. It is not meant to be
xercise to add the luster of legitimacy to a sham process. The requirement
22
by definition refusi g to consider relevant factors in mitigation. This is, of course, prohibited by
the constitution. Lo kett v. Ohio, 438 U.S. 586 (1978); Eddings v. Oklahoma, 455 U.S. 104
(1982).
Ohio Allocution Pre edent
In State v. C bell (2000) 90 Ohio St.3d 320 1, this Court held that pursuant to Crim.R.
32(A)(1), before im osing sentence, a trial court must address the defendant personally and ask
whether he or she shes to make a statement in his or her own behalf or present any information
in mitigation of pun shment. Crim.R. 32(A)(1), which holds "[b]efore imposing sentence the
court shall afford co sel an opportunity to speak on behalf of the defendant and also shall
address the defend t personally and ask if he or she wishes to make a statement in his or her
own behalf or prese t any information in mitigation of punishment."
Campbell he d that this rule applies to both capital cases and noncapital cases. In a case
in which the trial co has imposed sentence without first asking the defendant whether he or she
wishes to exercise e right of allocution created by Crim.R. 32(A), re-sentencing is required
unless the error is in ited error or harmless error.
This Court h is noted that the penalty phase in a capital case is not a substitute for
defendant's right of llocution. State v.Reynolds (1998), 80 Ohio St.3d 670, 684. In Reynolds,
this court found no 1 rejudicial error in the trial court's failure to ask the defendant whether he
wished to make a st tement, because the defendant had already made an unsworn statement, and
presented a personal letter to the court during the mitigation phase, and had defense counsel
make a statement on his behalf. Id. Unlike Revnolds, Mr. Fry did not make an unsworn
statement. The state ent he did make was not made until after the trial court had prepared the
23
sentencing opinion, a
Furthermore,
in State v. Myers (20(
own behalf during the
testimony encompass
directly appeal to the,
ready having made up her niind that death was the appropriate penalty.
he appellant did not testify under oath during any penalty stage as occurred
12), 97 Ohio St.3d 335. However, Myers exercised the right to speak on his
mitigation phase and subjected himself to cross-examination. This
;d over 200 pages of the mitigation phase transcript. This enabled him to
udge for his life.
This court in e nolds warned that:
Failure to pro ide a defendant the right of allocution could constitute reversibleerror in a fut e case.
Reynolds, snnra, at 68
The future cas
3665. In Roberts, the
hearing. Although thf
defense counsel, the e
defendant's fmal com
This Court in ]
4.
may have been State v. Roberts (2006), 110 Ohio St.3d 71, 2006 Ohio
trial court likewise prepared the sentencing opinion prior to the sentencing
Roberts judge did not allow the defendant to allocute until requested by
ect is the same. The opinion was prepared without consideration of the
ents.
oberts noted that Crim. R. 32(A)(1) provides that before imposing
sentence in a criminall trial, the trial court shall "address the defendant personally" and ask
whether he or she wis
mitigation of pun s
case on other grounds
court shall provide Rc
95. A similar order n
es to make a statement on her own behalf or present any information in
ent. Because the decision vacated the death sentence and remanded the
the issue became moot. However, the decision ordered that "the trial
berts with her right of allocution before imposing any new sentence." Id. at
ust be issued here.
24
It is clear t the trial court here did not heed the warning. Therefore, the denial of
allocution here was n violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the
United States Const tution.
Proposition of Lawl IV:
A child wit^testify unlesdistinguish
In presentin€
testimony of six yea
Hardison, was killec
surrounding his grar
properly conducting
found that the state (
the witness to be coi
ess under the age of ten years must be found incompetent tos the record affirmatively establishes that the witness is able toight from wrong and the truth from a lie.
its case against Mr. Fry, the prosecution relied upon the eyewitness
7-old Jasown Bivens. Jasown was present when his grandmother, Ms.
. He was the only person prosecutors called who actually witnessed events
dmother's death. His testimony was critical to the prosecution's case. After
a hearing on the issue of Jasown's competency, the trial court erroneously
ivercame the presumption of incompetence for a child under ten and found
npetent. The evidence does not support the finding.
Competency Standatd
Evid.R. 601(
Every persoage, who aptransactions
) provides:
is competent to be a witness except * * * children under ten years ofear incapable of receiving just impressions of the facts andespecting which they are exaniined, or of relating them truly.
25
In determining the ca
to receive, recall, ani
appreciate the respoi
The proponent of th
capable of receiving
St.3d 466, 496. The
Mr. Fry recop
appearance, manner
accurately and trathf
Frazier, 61 Ohio St.
Present Case
Before allow:
examination to ascer
he claimed to have o
the date of his birthd
1194, 1196) Later, J
kindergarten where t
lived with his mom a
judge that he underst
before trial, that his €
When the cor
Jasown shook his he^
>mpetence of a child witness, the trial court must consider the child's ability
I communicate accurate impressions of fact, understand truth and falsity, and
isibility to tell the truth. State v. Frazier (1991), 61 Ohio St. 3d 247, syllabus.
-1 child witness' testimony bears the burden of proving that the witness is
just impressions and relating them truthfully. State v. Clark (1994), 71 Ohio
prosecution failed that obligation in this case.
nizes that because the trial court has the opportunity to observe the child's
:)f responding to questions, general demeanor and ability to relate facts
ally, its determination will not be reversed absent an abuse of discretion.
3d at 250-251. See, also, State v. Allard (1996), 75 Ohio St. 3d 482, 496.
ng the child, Jasown, to testify, the trial court conducted a voir dire
ain whether he was competent to accurately and truthfully relay the events
)served. Jasown told the court that he was six years-old, but did not know
iy, and had not yet attended school or any Head Start type program. (Tr.
isown boy actually testified, he indicated that he had just attended
e studied his numbers and A, B, Cs. The court determined that Jasown
nd dad and two siblings, ages two and four. (Tr. 1187) Jasown told the
ood he was in court to talk about Clarence and the day, almost one year
randmother was hurt. (Tr. 1189)
rt asked the child if he knew the difference between right and wrong,
id "no." (Tr. 1190) The court then asked the child to tell her what it means
26
to tell the truth, to w ich he responded: "If somebody told me something and a lie or something
and I did it, that's a 1 e." (Tr. 1190) Jasown acknowledged that if he told a lie he would get in
trouble with his mo and dad. Jasown raised his left hand when the judge asked him to raise his
right hand for the oa . (Tr. 1191)
The court als asked the following, "What does that mean if you promise to tell the truth
in front of God, and e judge, and the Court?" Jasown answered "a lie." (Tr. 1191) She asked
him to clarify, "Wha do you mean a lie? That you promised to tell the truth or you promise to
tell a lie." Jasown sa'd it meant that he promised to tell the truth. ( 1192) When the court asked
the Jasown how he f lt about being in court that day, he responded that he was happy because
when he returns hom he is going to play outside. (Tr. 1192) The child did not know what a
judge did, and told t at court that he did not know what it meant to do something wrong or do
something right. (Tr 1194) The court then again asked Jasown to tell her the difference between
telling the truth and t lling a lie, and he stated:
Um - if I had something and my friends told my mom something and I didn'thave nothing anum - and I - um, if I had something and I didn't, if my friendstold my mom I would be in trouble and I would be grounded." When the courtasked him to ell her what it meant to tell the truth, the child said, "If my friendstold my mom something and, um, and um, if I - and I had something, and I wentto go show m mom, that's not no lie.
(Tr. 1195)
At that point, the coo found Jasown to be competent. Specifically, the court noted,
[T]he Court nds that Jasown is capable of receiving just impressions, he iscapable of rel ting them truthfully, and he understands the nature of the oath.And that he ows the difference between telling the truth and telling a lie. Heknows he is p ished if he tells a lie, and that it is appropriate to tell the truth.
(Tr. 1197) These fin ings are not supported by the record.
27
During the oir dire, Jasown could not tell the court the difference between right and
wrong, or his right om his left, for that matter. And, although he knew that he would get in
trouble for telling a lie, he could not coherently describe what a lie was or distinguish it from the
truth. Being able t distinguish right from wrong and the truth from a lie ought to be
fundamental to co petency. See, e.g. State v. McNeill (1998), 83 Ohio St.3d 438, 443 (Child
witness competent vhere, among other things, he knew the difference between the truth and a lie
and correctly identi red examples of each); and State v. Coker (Sept. 16, 1999), Cuyahoga App.
No. 74785 (Six ye old found competent where he told the court he knew the difference between
truth and falsity anthe consequences of lying, and he promised to tell the truth during his
testimony).
Mr. Fry un rstands that children need not tes6fy with the clarity and sophistication of
adults. State v. Mil ow (June 15, 2001), Hamilton App. Nos. C-000524, 000510. But Jasown
demonstrated an in bility to separate right and wrong. Under the circumstances, the trial court
abused its discretio in finding him competent to testify.
Ohio's com etency standard created a liberty interest. The trial court determination that
six-year old Jaso was competent is in violation of the Fifth, Sixth, Eighth and Fourteenth
Amendments to the United States Constitution.
28
Proposition of Law 1V:
In a capital clase, the introduction of evidence of alleged prior acts of violenceunfairly prej dicial unless such acts are intrinsically related to the chargedoffense.
It is not conte ted that Mr. Fry was the perpetrator of the homicide. Following his arrest,
Mr. Fry cooperated 'th authorities and admitted that he stabbed Ms. Hardison during an
argument. The quesfon before the jury was whether Mr. Fry's conduct rendered this a capital
murder case.
In an effort to turn Mr. Fry into a monster deserving of such a penalty, the prosecution
sought to parade befo e the jury a lengthy record of alleged violence. It was the prosecution's
position that such evi ence was relevant to demonstrate that Mr. Fry was a habitual stalker and
abuser. (May 15, 200 - Tr. 76) The trial court denied the prosecution's request before trial,
limiting the introduc on of other acts evidence to those involving Ms. Hardison. (May 15, 2006
- Tr. 85) Later, how ver, notwithstanding that ruling, the prosecution managed to introduce
damaging other acts e idence during the court of this trial.
Other Acts Law
As a general le, evidence of other alleged acts a defendant may, or may not have
undertaken, are only dmissible if they show by "substantial proof' something other than a
defendant's propensi to commit crime. State v. Goines (1996), 111 Ohio App.3d 840. Evid. R.
404(B); R.C. 2945.59 Specifically, Evid. R. 404(b) provides:
Evidence of otof a person inhowever, be acintent, prepara
her crimes, wrongs, or acts is not admissible to prove the characterbrder to show that he acted in conformity therewith. It may,tmissible for other purposes, such as proof of motive, opportunity,tion, plan, knowledge, identity, or absence of mistake or accident.
29
Revised Co
criminal case in wh
part, or the defend
defendant which te
or the defendant's s
they are contempo
may show or tend
First, howe
which it is being in
has a tendency to m
more probable or le
relevant is inadmiss
Accordingly, in Ed
tampering case irrel
support warranted a
Moreover, b
is admitted, this Co
the standard for det
e 2945.59 allows for the admissibility of "other acts" as follows:In any
ch the defendant's motive or intent, the absence of mistake or accident on his
's scheme, plan, or system in doing an act is material, any acts of the
d to show his motive or intent, the absence of mistake or accident on his part,
heme, plan, or system in doing the act in question may be proved, whether
eous with or prior or subsequent thereto, notwithstanding that such proof
show the commission of another crime by the defendant.
er, the proponent of such evidence must demonstrate that the purpose for
oduced is relevant to an issue in the case. Relevant evidence is that which
e the existence of any fact consequential to the determination of the action
s probable than it would be without the evidence. Evidence that is not
ble. Evid. R. 402; State v. Edmonds (2000), 139 Ohio App. 3d 298, 300.
onds, the court held that placing before the jury in a forgery and evidence
vant evidence concerning the defendant's habitual failure to pay child
new trial. Id. at 302.
cause the danger of unfair prejudice is so great when "other acts" evidence
has indicated that the rule "must be construed against admissibility, and
rmining admissibility of such evidence is strict." State v. Coleman (1989),
45 Ohio St. 3d 298, State v. Broom ( 1988), 40 Ohio St. 3d 277. That rigorous test was based on
the Court's underst ding that exposing ajury to propensity evidence can improperly influence
the outcome of a c e by promoting the following:
1. The verstrong tendency to believe the defendant guilty of the charge merely
30
becau{ e he is a person likely to do such acts;
2. The t ndency to condemn not because he is believed guilty of the present chargebut b ause he has escaped punishment from other offenses;
3. The i'ustice of attacking one who is not prepared to demonstrate the attackingevide ce is fabricated; and
The cnfusion of issues which might result from bringing in evidence of othercrime .
State v. Currv (1975)
To be admissi
43 Ohio St.2d 66, 68,
ble, the offense must be inextricably related to the offense. Where the acts
sought to be introduc d into the evidence are not inextricably necessary to prove the crime
charged in the indic ent, such evidence is inadmissible. Curr , supra; State v. Wilkinson
(1980), 64 Ohio St.2 308; State v. Hutton (1990), 53 Ohio St.3d 36.
Finally, even f such evidence is relevant and admissible under Evid. R. 404(B), its
introduction would n vertheless have been improper under Evid. R. 403(A), which provides:
"Although relevant, vidence is not admissible if its probative value is substantially outweighed
by the danger of unf 'r prejudice, of confusion of the issues, or of misleading the jury." In State
v. Jones (151 Dist. 19 5), Appeal No. C-950005, court concluded that the defendant was entitled
to a new trial where t e trial court allowed the jury to hear evidence that the defendant previously
shot and played with uns. Notwithstanding the possible relevance of the evidence, it improperly
cast defendant as an i
charged. Id.
At trial, Detec
Hardison's death she
Detective found that I
dividual of dubious character more likely to have committed the crime
tive Bertina King testified that as part of her investigation of Ms.
ran a criminal history check on Mr. Fry. (Tr. 1569) During that check, the
vlr. Fry had a criminal history of domestic violence. Then, essentially
31
reversing its previo
multiple prior convic
dating back nearly
considered in light
ruling, the trial court allowed the Detective to relay that Mr. Fry had
ions for domestic violence and arson (involving the home of his wife)
years. (Tr. 1576-1583) This testimony was damaging, but when
of other extraneous evidence the prosecution was also allowed to improperly
introduce, it denied
Early in the
Police Department'
r. Fry the right to a fair trial.
tr al, the prosecution introduced testimony of Officer Michael Rinn, of Akron
D omestic Violence Intervention Unit. He was one of the officers who
responded to the cal 1 0 n July 18, 2005 and helped arrest Mr. Fry. At one point during into his
discuss the "cycle of violence" that often occurs in relationships wheretestimony he started
domestic violence h
tb
am occurred. (Tr. 938) Although the defense objection to this information
was sustained, it betr
batterer and Ms. Har
Shortly after
4yed the prosecution's theory of the case - that Mr. Fry was a habitual
dli on's death was the natural cuhnination of her relationship with him.
0 'ficer Rinn testified, the State called Donnell Juersivich, a victim advocate
met with Ms. Hardison in the hospital after the July 18`h assault. Theand social worker, W.
state first devoted co
advocate, focusing p
0
siderable attention to her background and training as a victim rights
icularly on the "cycle of violence" in battering relationships. (Tr. 1089-
f that Ms. Hardison's relationship with Mr. Fry was a "cycle of violence,"90) There was no pro'p
and even if it were, th
the testimony from a
Ms. Hardison's life,
0 fact alone, was surely not relevant to the crimes charged. Nevertheless,
rported expert on the subject, who recounted her personal involvement in0
e made it look as if she had been habitually battered by Mr. Fry.
ictions and unfounded cycle of violence testimony was not the onlyThe prior con
irrelevant extraneous
20
d damaging evidence to which the jury was exposed. The state also
32
elicited from Ms.
been burglarized
2005. (Tr. 1149)
items she had on 1
to police or appreh
the thief s identity
incident's relevanc
conclude that Mr
The introd
Mr. Fry's behavior
Under the circums
unfairly tainted thi
penalty. The impr
the weighing proce
U.S. 862 ( 1983).
This Court
penalty phase of tri
admission of such
Proposition of La
Given the
ardison's daughter, Nikita Knox, information that Ms. Knox's apartment had
d ransacked while she was vacationing with her children sometime in July,
s. Knox claimed to have lost a number of television sets and other undefined
an from Rent-a-Center. (Tr. 1162-63) Whether Ms. Knox reported the crime
nded the thief was not established. The prosecution also failed to establish
although Ms. Knox implied that she thought it was Mr. Fry) and the
to this case. Yet, after hearing the evidence, the jury could not help but
ry was on a rampage bent on terrorizing Ms. Hardison and her family.
ction of this evidence allowed the jury to make improper conclusions about
and his motivation and state of mind at the time of Ms. Hardison's death.
ces, while neither relevant nor reliable, the other acts evidence in this
jury against Mr. Fry and made it more likely to find him eligible for the death
per evidence allowed the jury to consider non-statutory aggravating factors in
ure when detennining the appropriate sentencing. Zant v. Stephens, 462
as recognized the carry-over effect of non-statutory aggravators into the
State v. Jeffrey Thompson (1987), 33 Ohio St. 3d 1. The improper
on-statutory aggravators also affects this Court's proportionality review. See
eightened respect for due process generally accorded that those charged in
capital cases, the p0sentation of this evidence was particularly egregious. See, Getsy v. Mitchell
(C.A. 6, 2006), 45^ F.3d 575, 583. The admission of the irrelevant and unfairly prejudicial
33
evidence of prior act^ was in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to
the United States Cohstitution.
Proposition of Law IVI:
Statements o police, a hospital nurse and a victim-witness advocate theConfrontati n Clause under the Sixth Amendment to the United StatesConstitution when it is reasonably foreseeable by the declarant that thestatements ould be used in a subsequent criminal prosecution.
In Fry's case the state introduced hearsay testimony of the decedent. The statements
were made to the po ice, hospital personnel and a victim-witness advocate. The statements were
made in relation to e assault charges with later were indicted as domestic violence charges.
This statements wer introduced and admitted in violation of the federal Confrontation Clause.
The Sixth A endment's Confrontation Clause provides that in all criminal prosecutions,
the accused has the r ght to be confronted with the witnesses against him. That guarantee
includes the right to ross-examine witnesses. Pointer v. Texas, (1965) 380 U.S. 400, 404
(applying the Sixth mendment to the states through the Fourteenth Amendment). Cross-
examination has bee characterized as the "greatest legal engine ever invented for the discovery
of truth." White v. II inois (1992), 502 U.S. 346, 356.
The right of onfrontation is primarily directed at ensuring the "reliability of the evidence
against a criminal d endant by subjecting it to rigorous testing in the context of an adversary
proceeding before the trier of fact." Marvland v. Craie (1990), 497 U.S. 836, 845.
34
Ultimately, tlle Confrontation Clause serves two objectives. First, it gives a criminal
defendant the right t confront his or her accusing witness face-to-face in open court for truth-
testing cross-examin tion. Second, it allows the jury an opportunity to judge the credibility of the
witness through obs rvation of the witness's demeanor. Id., citing Mattox v. United States
(1895), 156 U.S. 23 , 242-43.
In 2004, the upreme Court of the United States issued Crawford v. Washin tg n, 541
U.S. 36 (2004), whi held that the Confrontation Clause absolutely barred the prosecution from
introducing "testimo 'a1" statements at trial unless the declarant was subjected to cross-
examination. Id. at 6. The High Court sunnned up its holding this way: "Where testimonial
statements are at iss e, the only indicium of reliability sufficient to satisfy constitutional demands
is the one the Consti tion actually prescribes: confrontation." United States v. Franklin (C.A. 6,
2005), 415 F.3d 537, 545; quoting Crawford, at 68-69. While Crawford did not define what it
meant.by "testimoni 1" hearsay, it did note that the term "testimonial" includes any statement
that a declarant woul reasonably expect to be used for purposes of prosecution. Id. at 51.
The Court w t onto say that,"[w]hatever else the term covers, it applies at a minimum
to prior testimony at preliminary hearing, before a grand jury, or at a former trial; and to police
interrogations. These are the modem practices with closest kinship to the abuses at which the
Confrontation Claus was directed." (Emphasis added.) Crawford, 541 U.S. at 68. This passage
clearly states that the term "testimonial" applies, at a minimum, to these "modem practices."
The hearsay i troduced during Mr. Fry's trial involves statements made to the police and
those acting as gove ent agents. Even the statements not made to police should have been
excluded. Their intr duction offends the Confrontation Clause because the declarant would
35
reasonably expect it
By prefacing
Crawford intended t]
;o be used for prosecution.
this assertion with the phrase, "Whatever else the term covers," the Court in
e term "testimonial" to include statements generated in ways other than
these "modern pracfces." Moreover, while there is language in Crawford emphasizing the role of
government officers in creating testimony, Crawford imposed no per se rule that a testimonial
statement must be m de to a government agent. Nor did the Court impose such a limitation in
Davis/Hammon, its ubsequent effort to refine the distinction between hearsay that is testimonial
versus that which is ontestimonial.
In the consol dated cases of Davis v. Washington, and Hammon v. Indiana (2006), 547
U.S. _, 126 S.Ct 22 6, the Court set out to clarify two concerns. First, in Davis, the Court
focused on whether d to what extent the contents of a 911 call were admissible in the absence
of the declarant und the Confrontation Clause. Second, in Hammon, the Court undertook to
resolve whether resp nses to questions from an investigating officer at the scene of an alleged
crime. With respect o the statements made to the police, the Court unequivocally determined
that where they addr ssed events that have already occurred, as opposed to those that were still
ongoing, the stateme ts were testimonial and, therefore, barred under the Confrontation Clause.
Davis/Hanunon, 126 S.Ct 2266 at 2273-2274.
There, the C rt specifically cautioned that its opinion should not be read for the
proposition that state ents in the absence of police interrogation are "necessarily
nontestimonial." Da is, 126 S. Ct. at 2274 n.1. In light of this legal framework, it is clear that
the hearsay evidence identified below was admitted in violation of Mr. Fry right to confront
witnesses.
36
Ms. Hardison's Julv
The hearsay
Matthew Hackathorn
and his partner arrive
dispute. According t
turned out to be false
involving a gun. (Tr
Hackathom interviev
aggravated menacing
incident and then hac
sought to introduce b
least with respect to 1
Initially, the t
18 , 2005 Statements to Police
Lt issue in Mr. Fry's case included testimony from Akron Police Officer
. concerning the substance of his interview with Ms. Hardison. Hackathorn
:d at the Fry/Hardison apartment on July 18, 2005 and broke up their
o Officer Hackathorn, they had received information (which ultimately
), from 911 dispatch that there was a domestic dispute at the apartment
954) When they reached the apartment, they separated the couple. Officer
ed Ms. Hardison, while his partner charged Mr. Fry with assault and
.(Tr. 979) Officer Hackathorn took Ms. Hardison's oral account of the
I her prepare a written statement reflecting that account. The state then
oth statements under the hearsay exception for excited utterances, or, at
he written statement, as a business record. (Tr. 966, 969)
rial court barred the evidence. Later, however, the court reversed itself and,
based on Akron v. H tton, Summit C.A. No. 22425, 2005 Ohio 3300, admitted Ms. Hardison's
oral statement as an xcited utterance. (Tr. 995) According to the Officer, he interviewed Ms.
Hardison in an aparti ent bedroom, she was extremely shaken and appeared to have just
undergone a traumat experience. (Tr. 1004) After refusing medical treatment, Ms. Hardison,
explained that she an 1 Mr. Fry had been in an argument and that he struck her approximately ten
times in the face. Ms Hardison then told the officer that Mr. Fry, while brandishing a leather
punch, threatened, "I 'you don't shut up, I am going to kill you." (Tr. 1004-5)
Under Davis ammon, supra, these statements were inadmissible. In fact, that case
explicitly held that st itements to police about an incident that had already occurred were
37
inadmissible. The fa ts in the Hammon case are particularly illustrative in this regard. There, as
in this case, police h been called to a residence because of a domestic disturbance. During
interviews at the sce e, the defendant's wife provided a lengthy statement in which she claimed
that her husband had ehaved violently. When it resolved that the wife's accusations should
have been excluded, he Supreme Court distinguished this scenario from the incident in Davis
involving statements ade to a 911 operator about an ongoing emergency. Unlike the statements
on the 911 call, whic the court determined were admissible under the Confrontation Clause, the
court noted that the f cts underlying Hammon demonstrated that the wife's interrogation was part
of an investigation in o possibly criminal past conduct. Id. at 2278 (emphasis added).
More impo tly, the Supreme Court of the United States stressed, there was no
emergency in progre s and what the officer was seeking to determine was what had already
transpired - not what as currently happening. Id. Further, the Court noted that informal nature
of the interrogation i Hannnon i.e. the fact that it was taken at the scene and not formally
recorded, made it no ess testimonial. What rendered the statement testimonial, the Court
emphasized, was that it was neither a cry for help nor the provision of information enabling
officers to immediate y end a threatening situation. Id. at 2279. Given this explicit prohibition, it
is clear that the trial urt erred by allowing Officer Hackathorn to relay what Ms. Hardison told
him about the incide t.
Excited Utterance
The standard of review for an excited utterance pursuant to Evid. R. 802(3) was
established in Potter . Baker (1955), 162Ohio St. 488. The trial judge must reasonably find:
a. that ere was some occurrence startling enough to produce a nervous excitement
38
in t
mak
declarant, which was sufficient to still his reflective faculties and thereby
e his statements and declarations the unreflective and sincere expression of
his ctual impressions and beliefs, and thus render his statement or declaration
spo taneous and unreflective,
b. that the statement or declaration, even if not strictly contemporaneous with its
exci ing cause, was made before there had been time for such nervous excitement
to 1 se a domination over his reflective faculties, so that such domination
cont'nued to remain sufficient to make his statements and declarations the
unre ective and sincere expression of his actual impressions and beliefs,
c. that the statement or declaration related to such startling occurrence or the
circ rostances of such startling occurrence, and
(d) tha the declarant had an opportunity to observe personally the matters asserted in
his atement or declaration.
(Emphasis sic.) Id. at paragraph two of the syllabus (approved and followed in State v. Duncan
(1978), 53 Ohio St. d 215)
An excited itterance must be the product of reactive rather than reflective thinking.
State v. Ra on Ta lor (1993), 66 Ohio St. 3d 295. The reflective thoughts provided by
Hardison to police fficers do not meet the standards of an excited utterance.
Ms. Hardison's Staements to Nurse at Akron Cit Hospital
The State a so called Amy Veney, a forensic nurse trained under both the SANE and
DOVE programs. hat training is intended to prepare nurses "to specifically deal with people
who have been vic 'ms of sexual assault, all the car that goes into that, the assessment, evidence,
39
evidence collection
specialized training
gave her similar exl
and discharge planning." (Tr. 1029) According to the witness, additional
with the DOVE ptogram (Developing Options for Violent Emergencies),
ertise with domestic violence victims. (Tr. 1030-31)
In her capac^ty as a DOVE nurse, Ms. Veney testified that she consults with hospital
patients, prepared a
the party that reque:
a domestic violence
Veney has the patiei
officials. (Tr. 1068-
After establi
prosecution introdu(
connection with tha
confrontation conce
finding that the he
treatment. (Tr. 104'
The nurse th
Ms. Hardison told h
1040-45) The recor
obtained from Ms. F
under the auspices o
took of Ms. Hardiso
50, Ex. 13) After cc
report reflecting that consult, then if asked will appear in court to testify for
ts her. (Tr. 1033) Ms. Veney has never testified on behalf of the defense in
or abuse case. (Tr. 1067) Prior to her examination and interview, Ms.
it sign a form allowing her to release her records to law enforcement
70)
3hing that Nurse Veney met with Ms. Hardison on July 18, 2005, the
;ed as State Ex. 10 the standardized DOVE nurse chart she prepared in
: meeting. (Tr. 1036) Over defense objection based on hearsay and
ns (Tr. 999-1001), the trial court allowed the lengthy testimony based on a
say was admissible because the statements were made for purposes of
-n detailed the contents of Ms. Hardison's chart. According to the nurse,
-r that Mr. Fry had punched in the eye, struck, strangled, and threatened. (Tr.
J reflects that the prosecutor then explored the narrative that the nurse
lardison that explored these various alleged acts in excruciating detail, all
f"treatment." (Tr. 1051) The state also introduced photographs, the nurse
n demonstrating how Ms. Fry allegedly undertook to strangle her. (Tr. 1048-
illecting the evidence, the nurse then treated Ms. Hardison by referring her to
40
a battered woman's slhelter and the Victim Assistance Program, providing her with a splint for
her wrist strain and
All of this ev
Fry allegedly tried to
hearsay. Mr. Fry is a
2006 Ohio 5482, whe
admissible in a rape c
unavailable to testify.
refined by Crawford
Stahl's, syllab
would be to bar the D
enforcement during
"determining whether
should focus on the e
a questioner is relev
syllabus 2.
Because Nurs
specifically advising
Mr. Fry had been char
know that her stateme
prosecution. Consiste
from introducing Ms.
commending Tylenol for pain. (Tr, 1062-65)
ence, Ms. Hardison's chart, the photographs of her demonstrating how Mr.
trangle her, and her alleged statements to Nurse Veney, were inadmissible
ate of this Court's decision in State v. Stahl (2006), 111 Ohio St.3d 186,
ein it found that the testimony of a DOVE nurse, like Ms. Veney, was
se where the victim had passed away prior to trial and was, therefore,
Mr. Fry argues here that that result violates the Confrontation Clause as
d Davis/Hammon.
s at 2, however, suggests that the proper result in that case and this one
VE nurse hearsay testimony because they are acting as an arm of law
e forensic examination. In that syllabus, this Court reasoned that when
a statement is testimonial for Confrontation Clause purposes, courts
pectation of the declarant at the time of making the statement; the intent of
t only if it could affect a reasonable declarant's expectations." Id. at
Veney testified that Ms. Hardison signed a release of information
at her records would be released to law enforcement, and she knew that
ed with assault in connection with the incident, she would have had to
ts to this nurse about the incident would be used in a subsequent
t with that conclusion, the trial court should have barred the prosecution
ardison's statements, medical records and demonstrative photographs
41
produced during a fo ensic evaluation by a trained DOVE nurse. Notwithstanding the result this
Court reached in Sta l, Mr. Fry maintains that the hearsay that the trial court admitted through
the examining nurse 'n Mr. Fry's case was inadmissible under the Confrontation Clause.
Ms. Hardison's State
Statements M
after the July 18, 200
Confrontation Claus
Donnell Juersivich, a
the court system. (T
Ms. Juersivic
According to Ms. Ju
with the assault and
night before Ms. Haro
relayed that Ms. Har
bond. (Tr. 1098)
Like the othe
case. Ms. Juersivich
Officer Hackathom,
information from Ms
prosecution ought to
In summary,
have been foreseen t
ents to a Victim-Witness Advocate
Hardison may have made to victim witness advocate, Donnell Juersivich
incident were also admitted in violation of Mr. Fry's rights under the
. Following Ms. Hardison's examination by Nurse Veney, she met with
victim assistance representative, whose job is to guide the victim through
.1087-89)
helped Ms. Hardison come up with what she called a safety plan.
sivich, Ms. Hardison was scared of Mr. Fry and intended to follow through
enacing prosecution. (Tr. 1091-95) Next Ms. Juersivich testified that the
ison died, the victim assistance hotline received a call from her. Juersivich
ison sounded upset, that Mr. Fry had been released from jail on a signature
statements, this unconfrontable testimony was devastating to Mr Fry's
as acting as a victim liason to the court system. Like Ms. Veney and
he was acting as an agent for law enforcement when she received this
Hardison. Under the circumstances it was testimonial hearsay that the
ave been precluded from presenting.
ecause the above statements were intended to be used or could reasonably
be used in a criminal prosecution, their admission violated the
42
Confrontation Clause
Proposition of Law II:
The mere fac that a defendant kills a person who had earlier sworn out acomplaint ag inst the defendant for an offense is insufficient to sustain afinding of gui t for the R. C. §2929.04(A)(8) specification. The evidence mustprove beyon a reasonable doubt that the defendant killed the victim becauseshe had swo out the earlier complaint.
The second sp
Mr. Fry was accused
upcoming misdemean
The matter was not ch
misdemeanor had beei
Specifically, tk
The victim of Ipurposely killethe aggravatedcommission, oof the offense 1murder was a ivictim's testim
Mr. Fry, in his
denied this allegation.
that he killed her. The
the reasons required b;
against him at the timf
,.cification to Count One was alleged pursuant to R. C. §2929.04(A)(8).
mf killing Ms. Hardison to prevent her from testifying against him in an
or assault case or because she had filed the complaint in the first place.
arged as a felony until the indictment. Mr. Fry was aware only that a
z charged against him.
te statute reads as follows:
he aggravated murder was a witness to an offense who wasd to prevent the victim's testimony in any criminal proceeding andmurder was not connnitted during the commission, attemptedr flight immediately after the commission or attempted commissiono which the victim was a witness, or the victim of the aggravatedvitness to an offense and was purposely killed in retaliation for theDny in any criminal proceeding.
statements to the investigating detectives and the trial judge vehemently
A review of the evidence establishes only that the complaint was filed and
evidence does not prove beyond a reasonable doubt that he killed her for
the statute. The fact that the victim of the homicide had a pending case
of her death is not proof beyond a reasonable doubt.
43
Sufficiency Standard
Under the Du Process Clause of the Fourteenth Amendment, a defendant in a criminal
case is protected agai st conviction except upon proof beyond a reasonable doubt of every
element necessary to constitute the crime with which he is charged. In re Winshin, 397 U.S. 358,
364 (1970); Davis v. United States, 160 U.S. 469, 487-88 (1895). The United States Supreme
Court set forth the st
The reviewing court
doing so, the court m
essential elements of
and every element of
sustain a conviction.
evidence alone, if su
reasonable hypothesi
1999). However, if
the record as a whole
368 (6th Cir. 2002).
Present Case
The indictme
dard for sufficiency review in Jackson v. Virginia (1979), 443 U.S. 307.
s to view all the evidence in the light most favorable to the prosecution. In
,ist then determine whether any reasonable trier of fact could find the
he crime proven beyond a reasonable doubt. The state must prove each
the offense charged by evidence beyond a reasonable doubt in order to
State v. Jenks (1991), 61 Ohio St. 3d 259.Furthermore, "circumstantial
stantial and competent, may support a verdict and need not remove every
except that of guilt." United States v. Tallev, 194 F.3d 758, 765 (6th Cir.
judgment is not supported by "substantial and competent evidence" upon
the judgment must be reversed. See United States v. Khalil, 279 F.3d 358,
t in Count One alleged under R.C. 2929.04(A)(8) that Mr. Fry killed
Tamela Hardison "to 2revent her testimony in another criminal proceeding" or Tamela Hardison
was a witness to an o ense and was purposely killed in retaliation of her testimony". To prove
the element of this ch rge, the state presented testimony in an attempt to show the Appellant
purposely killed the ictim because of a pending misdemeanor charge for which she was the
44
from the incident that occurred July 18, 2005.
On July 18, I2005, the Appellant was charged and arrested for the misdemeanor offenses
of assault and aggr
He made his initial
Akron Municipal C
Hardison in an effo
did she attempt to c
leave a message or
The misde
modification of a $
vated menacing in Akron, Ohio. Tamela Hardison was the alleged victim.
ppearance in Akron Municipal Court n the same day. Reed Yoder, the
urt Prosecutor for Judge Annalisa Williams attempted to contact Miss
to resolve the matter that day. Mr. Yoder never had contact with her nor
ntact that prosecutor. She did not respond to his calls to her nor did she
ven heard of her trying to reach him. (T. 1322).
eanor case continued until a pre-trial hearing on July 25, 2005. A bond
0,000 signature bond with Ioy reporting. (T. 1327). Again, Tamela
Hardison never inst#gated contact with that prosecutor about the case. On August 7, 2005, pre-
trial date was sched
respond to that sub
demonstrates that n
charges.
The grandso
essentially an eye
apartment at 825 I
led with a subpoena issued for her presence in court. However, she did not
oena nor complain of the modification for Mr. Fry's release. (T. 1336). This
ither the Appellant nor Tamela Hardison was concerned about the pending
of Tamela Hardison, Jasown Birvens, witnessed her death. He was
ess to that event and testified at trial. He saw the Appellant enter the
as no comment regarding any dissatisfaction or complaint regarding the
Fry was that he asked Tamela Hardison, "Where are my clothes?" (T.
ent after Mr. Fry entered the residence. The only comment Jasown Bivens
Court, Akron on July 31, 2005 with a "knife and bowl." (T. 1212). He
pending misdemeanbr cases. It was obvious that the paramount issue on Mr. Fry's mind dealt
45
with the return of '
Detective
Mr. Fry made to hi
of that interview (T
and described his r
conversation (Ex. 9
revealing his state
make reference to
to those offenses.
s property that Miss Hardison possessed.
ichael Shaeffer of the Akron Police Department testified as to a statement
on November 3, 2005. (T. 1601). The statement was recorded as a result
164; Ex. 94). He gave his own account of the events that day, July 31, 2005
ationship with Tamela Hardison. The transcript prepared of that
) and certainly the audio tape consisted of at least an hour of Mr. Fry
ent. Under interrogation by Detective Shaeffer, at no time does the appellant
e pending misdemeanor cases or anger toward her as a witness or victim as
e does express resentment that she took his possessions from his home and
that he discovered ose items in a consignment shop.
Fry also ma e a concerted effort to report his property stolen by Miss Hendison. He
approached Detecti e Mychal Brown of the Akron Police Department on July 26, 2005.
Detective Brown d known the Appellant from high school. (T. 1369.) The appellant inquired
of the officer as ho he could make an official police report regarding the theft of his clothes.
(T. 1371). Mr. Fry poke with Detective Brown at the Akron Police Department and did not
even have any fund to take the bus back home. His only interest as told to this police officer
was to have his pro erty returned. (T. 1375, 1376).
The key to flie R. C. §2929.04(A)(8) statute is the intent of the perpetrator. Indeed, this
Court has so stated n numerous occasions. In State v. Conwav (2006), 109 Ohio St.3d 412,
2006 Ohio 2815 thi Court noted that the plain language of the statute requires only:
that e victim was a witness to an offense and,
that e purpose of killing the victim was to prevent the victim from testifying in a
46
crimi al proceeding.
(Emphasis added) S e State v. Yarbroueh, 95 Ohio St.3d 227, 2002 Ohio 2126.
Thus, wheth there is a case pending is almost irrelevant. The evidence must prove that
the purpose of the kiIling was to prevent the witness from testifying.
Here, there is
July 8' to July 315`
clothes or property t
fashion a theory of r
of their theories to c
The state's m
she was the victim o
Experts testified as t
other acts evidence
no such testimony. The testimony as to the appellant's state of mind from
005, is replete of evidence that Mr. Fry was obsessed with the return of his
at Tamela Hardison confiscated and discarded. The state simply tried to
taliation toward her because of the misdemeanor charges. That was just one
nnect the homicide to a death specification.
ain thrust of their numerous theories was the Hardison was killed because
' domestic violence. The two were involved in the cycle of violence.
this theory. If the state argues that the reason for the introduction of the
as to establish this cycle, then domestic violence and not retaliation would
seem to be the basis fo
evidence that the ho
itself. The evidence
Hardison in retaliatio
the killing. See Proposition of Law V. Indeed, the state introduced no
icide was based upon the filing of the assault complaint except the filing
oes not prove beyond a reasonable doubt that the appellant killed Tamela
i for her testimony or for filing the complaint.
47
Proposition of Lawl VIII:
In a chargethere is no edid not fornthe evidence
The evidence
charged in Count Tv
Proposition of Law `
intent to killed.
In reviewing
that the appellant we
threats to kill her. T
immediately. The ki
1 Aggravated Murder pursuant to R. C. §2903.01(A), where,idence to establish that the intent to commit a purposeful killingprior to a heated argument between the defendant and victim,may not support the element of prior calculation and design.
is insufficient to sustain the element of prior calculation and design as
o of the indictment. In essence, the same arguinent that applied in
'II applies here. Both issues revolve around the allegation of pre-formed
the evidence in a light most favorable to the state, the evidence establishes
nt to Ms. Hardison's house with a knife and a bowl. There were no prior
here was no damage to her apartment upon entering. He did not stab her
ds were in the home. The only argument was apparently about clothes. The
incident occurred in the middle of the d`ay. Fry requested that someone ca11911 after the
stabbing. The coro er acknowledged that only one of the wounds was fatal, and this was a nick
of the aorta. None f the blows was directed at the heart
A defense w tness saw the appellant arriving in the vicinity without a knife. Fry insisted
he obtained the knif from the kitchen after he arrived to cut noodles. Nevertheless, because this
is a sufficiency arg ent, Haridison's six-year old son Jasown Bivens' testimony that Fry had a
knife must be found to be accurate.
The grandsoi
actual eyewitness in
apartment with a "ki
of Tamela Hardison, Jasown Bivens, witnessed her death. He was the only
ide the residence who testified at trial. He saw the Appellant enter the
ife and bowl." (T. 1212). Jasown went into the apartment after Mr. Fry
48
entered the residenc . The only comment Jasown Bivens remarked about Mr. Fry was that he
asked Tamela Hardi on, "Where are my clothes?" (T. 1213,1222). There was no comment
regarding any dissa 'sfaction or complaint regarding the pending misdemeanor cases. It was
obvious that the par
Miss Hardison poss
Even if Fry
alone cannot establi
planning or a sche
the act was committ
Prior Calculation
ount issue on Mr. Fry's mind dealt with the return of his property that
ssed.
rought a knife, which the appellant informed detective was a fork, that fact
h prior calculation and design for the homicide. There is no evidence of pre-
e. As noted, the evidence suggests strongly that there was no planning, as
d in front of witnesses who could and did identify him.
Design Standard in Ohio
The current $tate of affairs as to reviewing a prior calculation and design challenge was
summed in State v. ^ackson (2001) 92 Ohio St.3d 436. "There is no bright-line test to determine
whether prior calcul
Instead, each case
With this in
the courts have adc
This Court
held in Cotton that
tion and design is present. State v. Tavlor (1997), 78 Ohio St.3d 15, 20.
ust be decided on a case-by-case basis. Id "
nd, the history of this element will be examined below to determine how
ssed this issue on a case-by-case basis.
dressed the question in Ohio v. Cotton (1978), 56 Ohio St.2d 8. This Court
ior calculation and design is a more stringent element than the "deliberate
and premeditated m lice" which was required under prior law.
In Cotton, e defendant and his wife were confronted in a store with shoplifting. The
police were called. Upon their arrival, the defendants fled. The police pursued. A gun battle
resulted in the shoo ing of a police officer. The chase continued involving the defendant and
49
another officer. Th
officer was crawlin
The Cotton
opportunity betwee
constitute prior calc
after having fled th
element.
defendant eluded the second officer and returned to where the wounded
The defendant then deliberately shot the officer again, killing him.
ourt held that the evidence revealed the presence of sufficient time and
the appearance of the police officers on the scene and the fatal shot to
lation and design. The defendant's purposeful return to the wounded officer,
vicinity for a period of time, justified the conviction on the disputed
In State v. Toth (1977), 52 Ohio St.2d 206, it was held that acts done on the spur of the
moment do not de
defendant met three
They proceeded to
women then left to
A witness la
defendant told the
nstrate the elements necessary to prove aggravated murder. In Toth, the
women in a bar. The girls left because he began to bother one of their group.
second bar. The defendant approached them again at this bar. The group of
roceed to another establishment.
er saw the defendant working on his car outside of the second bar. The
tness that he would "waste" those responsible for the damage to his car.
That same evening, Ithe defendant saw the women at the second bar. The women denied
damaging his car.
Shortly ther
shot and missed. H
This Court
required to result in
hey asked him to leave them alone.
after the defendant reached into his pants and pulled out a gun. He fired one
then grabbed one of the women and shot her. She died of the injury.
und that the evidence was sufficient to show the planning and scheming
a conviction of aggravated murder. The Court noted that the defendant had
two opportunities t alter his course of action upon confronting the women at the bar. His failure
to do so was consis ent with prior calculation and design.
50
Ohio Cases Where Evidence Deemed Insufficient for Prior Calculation and Design
Contrary cas(
that evidence of prio
convictions.
s are available. In State v.Reed (1981), 65 Ohio St.2d 117, this Court held
^ calculation and design was insufficient to support aggravated murder
The defend t in Reed stood in a convenient store parking lot talking on the telephone.
Two police officers hought he looked suspicious. They followed the defendant's car. They
stopped the car. One
occupants in the car.
the other officer.
The only evi
in an auto body repa
cop gets in my way
nature and not relev
design. The evidenc
of the officers had his gun drawn when he approached Reed and the other
Reed exited the car and shot at one of the officers three times and twice at
ence of prior calculation and design was a statement Reed made to a person
r class with him approximately a month before the incident. He said "if a
during a robbery) I would blow him away." The comment was general in
t to the killing. The above evidence did not constitute prior calculation and
as sufficient only for purposeful.
In State v. D vis (1982), 8 Ohio App.3d 205, the court of appeals held that a momentary
premeditation could ot sustain the element of prior calculation and design. In Davis, the
defendant went to a avern and got into an argument with the doorman. The doorman had
stopped the defend t because he did not have an identification card. The owner of the tavern
intervened. During he confrontation, the defendant pulled out a gun and killed the owner and
wounded the doorm n. The court found that the evidence revealed that the defendant did not
arrive at the tavern 'th the intent of shooting either the owner or the doorman. Therefore, the
incident had develo ed precipitously and there could be no finding of prior calculation and
51
design.
This Court s emed to recognize the problems with the blurred distinction between
purposeful and prio calculation and design in State v. Colev (2001) 93 Ohio St.3d 253. In
Colev, the Court rec gnized the importance of the difference.
Yet "'prior cand premedi56 Ohio St.2"Instantaneosyllabus. "'[]implement tlSt.3d 185, 1511,100.0.3
In Coley the
her to a dead-end all,
except to kill her the
show that Coley "ado
The Ohio cor
At least one Ohio fin
Ohio Supreme Court
alculation and design' is a more stringent element than the 'deliberate^ted malice' * * * required under prior law." State v. Cotton (1978),
8, 10 0.O.3d 4, 381 N.E.2d 190, paragraph one of the syllabus.is deliberation is not sufficient ***." Id., paragraph two of the']rior calculation and design' requires 'a scheme designed toe calculated decision to kill.' " State v. D'Ambrosio (1993), 67 Ohio6, 616 N.E.2d 909, 918, quoting State v. Cotton, 56 Ohio St.2d at3 at 6, 381 N.E.2d at 193.
iefendant kidnapped another from the street in front of her home and drove
-y. As the record revealed no reason to drive her to this out-of-the-way spot
facts that showed prior calculation and design. The facts were sufficient to
)pted a plan to kill." Id.
nts' blurring of the line in these cases in is coming under federal scrutiny.
ding has been reversed on this issue for not following Ohio precedent. The
's finding that prior calculation and design evidence was sufficient in Ohio
v. Taylor, supra, was reversed in federal court in Taylor v. Mitchell, 296 F. Supp. 2d 784 (N.D.
Ohio 2003). The Ta lor scenario resulted out of a bar fight in which neither of the combatants
had known or antici ated that the other would be present the night of the incident. (The Taylor
decision was not app aled to the Sixth Circuit as Mr. Taylor died of natural causes after the
district court,decisio :)
52
Present Case
In his statem nt to Detective Shaeffer of the Akron Police Department, the appellant told
the detective:
Tamela's gotNoodles, andhave a fit.. .reminds me cnoodles.. .
State's Exhibit 95, p3
This statemen
fork rather than a kni
Fry indicated
them. Fry then went
her out. The fight esc
stabbed her, after beii
He was apparently sti
The evidence
i pet peeve about noodles, you know, when you eat them Oodles ofiou stir them. .. you (slurp) them, man if you do that man, she willhe will have a. ... she will fight you and I was eating it and thatuse I.. when I was walking from my mom's I was eating my
0
e 17.9
is consistent with Jasown seeing his bring in some eating utensil. It was a
hat Hardison wanted him to cut the noodles so that he would not slurp
nto the kitchen to get the knife to cut the noodles. He then began to cuss
lated. He accused her of selling her television for crack. At this point he
.g struck by an ashtray, although he did not know it was.an ashtray at first.
ack in the jaw. States Exhibit 95, page 19-21.
)f the element of prior calculation and design is insufficient under the
standards of Jackson J. Virginia (1979), 443 U.S. 307.
53
Proposition of La
The trial cothat he hasshould he oicase whereintelligent a
At the close
appellant was awari
judge started immed
relation to the appeli
appellant wanted to
Supreme Court of th
knowingly, intellige
decision on behalf o
The right to 1
provisions of the Co
fair adversary proce;
ingredients of the Fc
without due process
A person's rito be heard iijurisprudencawitnesses ag(Emphasis ai
In re Oliver, 333 U.
IX:
xrt must ensure that a criminal defendant understand not onlyhe right against self-incrimination, but also the right to testifyshe so choose. The court must inquire at the close of the defensedefendant has not testified if the defendant made a knowing,
id voluntary waiver of his right to testify.
Df the defense case, the defense rested with no discussion of whether the
that he had an absolute right to tesfify. After the Crim. R. 29 motions, the
iately into closing argument. (T. 1723) The record reveals no discussion in
ant's choice of whether to testify. The court failed to inquiry at all if the
testify. As the right to testify is an essential right as recognized by the
e United States, the right may only be relinquished if it is done so
ntly and voluntarily by the defendant. Defense counsel cannot make this
Fhis client.
estify on one's own behalf at a criminal trial has sources in several
nstitution. It is one of the rights that "are essential to due process of law in a
s:" Faretta v. California, 422 U.S. 806, 819, n. 15 (1975). The necessary
urteenth Amendment's guarantee that no one shall be deprived of liberty
of law include a right to be heard and to offer testimony:
;ht to reasonable notice of a charge against him, and an opportunityhis defense -- a right to his day in court -- are basic in our system of; and these rights include, as a minimum, a right to examine the.inst him, to offer testimony, and to be represented by counsel.ded.)
0
. 257, 273 (1948).
54
See also Fer uson v. eor ia, 365 U.S. 570, 602 (1961). (Fourteenth Amendment secures "right
of a criminal defenda it to choose between silence and testifying in his own behalf")
A defendant's right to testify is fundamental. See Rock v. Arkansas, 483 U.S. 44, 52-53,
(1987) ("An accused' right to present his own version of events in his own words" is "even more
fundamental to a pers nal defense than the right of self-representation"); see also Ro ers-Bey v.
Lane, 896 F.2d 279, 83 (7th Cir. 1990). And it noted that the right is personal to the accused,
and not capable of be ng waived by counsel on the defendant's behalf. See Jones v. Barnes, 463
U.S. 745 ( 1983).
Moreover, in Earetta v. California, supra, at 819 (1975), the Court recognized that the
Sixth Amendment "g
accused, not counsel,
must be `confronted
process for obtaining
Even more
was found to be "nec
right to present his o
conduct his own defe
witness.
The opportuni
guarantee against co
ants to the accused persorAally the right to make his defense. It is the
ho must be `informed of the nature and cause of the accusation,' who
ith the witnesses against him,' and who must be accorded `compulsory
tnesses in his favor."' (Citations omitted.)
damental to a personal defense than the right of self-representation, which
sarily implied by the structure of the Amendment," Id., is an accused's
version of events in his own words. A defendant's opportunity to
se by calling witnesses is incomplete if he may not present himself as a
to testify is also a necessary corollary to the Fifth Amendment's
elled testimony. In Harris v. New York, 401 U.S. 222, 230 (1971), the
iminal defendant is privileged to testify in his own defense, or to refuse toCourt stated, "Every c
do so." Id., at 225. e choice of whether to testify in one's own defense ... is an exercise of
55
the constitutional p'vilege." Mallo^. Hogan, 378 U.S. 1, 8 (1964).
On numero occasions the Supreme Court has proceeded on the premise that the right to
testify on one's o behalf in defense to a criminal charge is a fundamental constitutional right.
See, e.g., Nix v. 'teside, 475 U.S. 157, 164 (1986); Id., at 186, n. 5; Jones v. Barnes, 463 U.S.
745, 751 (1983) (de endant has the "ultimate authority to make certain fundamental decisions
regarding the case; s to whether to ... testify in his or her own behalf"); Brooks v. Tennessee,
406 U.S. 605, 612 ( . 972) ("Whether the defendant is to testify is an important tactical decision
as well as a matter f constitutional right.").
The appellai t's personal waiver of this fandamentat right, which protects the fairness of
the criminal procee ing, must be made in a knowing and intelligent manner to be valid. See
Schneckloth v. Bust onte 412 U.S. 218, 241 (1973) ("A strict standard of waiver has been
applied to those rits guaranteed to a criminal defendant to insure that he will be accorded the
greatest possible op ortunity to utilize every facet of the constitutional model of a fair criminal
trial."); see also Jo son v. Zerbst, 304 U.S. 458, 464 (1938) ("Courts indulge in every
reasonable presump ion against waiver of fundamental rights, and ... we do not presume
acquiescence in the oss of fundamental rights.") (quotation omitted).
Here, the tri 1 court made no inquiry as to whether the right to testify had be properly
waived. A waiver f an essential right cannot be presumed from a bare record.
56
O.R.C. § 2 29.04(A)(7) is unconstitutional where the same acts whichconstitute t e charge of aggravated murder are also used to narrow the classof death eli 'ble defendants.
In Count One, the only death eligible count, Appellant Fry was convicted of aggravated
felony murder unde
which specified tha
of aggravated burgl
elements of the Ag
number of felonies,
provision was not li
listing of elements
indictment does sati
unconstitutional as
Count Five
. . . with pua criminal o
R.C. 2903.01(B). He was also convicted of an aggravating circumstance
Fry committed aggravated felony-murder while engaged in the commission
. R.C. 2929.04(A)(7); R.C. 2911.11. The indictment did not specify the
ravated Burglary within this count. The jury could have found any one of a
harged or uncharged to constitute the element as even the statutory
ted. (See Proposition of Law XI) Even should this Court find the that the
der the separate count of Aggravated Burlary (Count Five) within the
fy grand jury and notice requirements, the charge is nevertheless
e narrowing requirement had not been met.
harges that the appellant trespassed into the residence of the victim,
ose to commit in said structure or separately secured portion thereof,ense, and CLARENCE FRY, JR. inflicted, threatened or attemptedical harm on Temela Hardison, and/or CLARENCE FRY, JR. had ato inflict phy
deadly weapunder his co
n or dangerous ordnance, to wit: knife on or about his person ortrol, in violation of 2911.11(A)(1)(2) ....
R. C. § 2911.11. Aggravated burglary, is defined as:
(A) No pers , by force, stealth, or deception, shall trespass in an occupiedstructure or i a separately secured or separately occupied portion of an occupiedstructure, wh n another person other than an accomplice of the offender ispresent, with purpose to commit in the structure or in the separately secured orseparately oc upied portion of the structure any criminal offense, if any of thefollowing ap ly:
57
(1) The offender inflicts, or attempts or threatens to inflict physical harm on another;
(2) The offe der has a deadly weapon or dangerous ordnance on or about theoffender's pe son or under the offender's control.
The problem
do the Aggravated
the purpose to co
murder inside of an
committed the homi
conunitted the homi
eligible defendants a
Constitutional Narro
Under the Ei
consistency, fairness
sentences of death
here is that both (A)(1) and (2) encompass the same exact acts and facts as
urder. The charge of Aggravated Burglary requires that Fry trespassed with
t a criminal offense. The criminal offense here is the homicide. Any
ccupied structure will by definition meet (A) (1) and (2). Here, he
ide during an attempt to commit a criminal offense, the same homicide. Fry
ide while committing a homicide. There is no true narrowing of the class of
is constitutionally required.
ing Requirment
hth Amendment, states must adopt procedural protections that "assure
and rationality in the evenhanded operation of the state law ... to assure that
11 not be 'wantonly' or 'freakishly' imposed..." Proffitt v. Florida, 428
U.S. 242, 260 (1976)I (Joint Opinion of Stewart, Powell and Stevens, JJ.) (citation omitted), and
"promote the evenh
Jurek v. Texas, 428
(citation omitted).
Central to thi
death penalty schem
Court has stated: "
'genuinely narrow th
ded, rational, and consistent imposition of the death sentences under law."
.S. 262, 276 (1976) (Joint Opinion of Steward, Powell and Stevens, JJ.)
jurisprudence is the "constitutionally necessary narrowing function" of any
. Pulley v. Harris, 465 U.S. 37, 50 (1984). As the United States Supreme
r precedents make clear that a State's capital sentencing scheme must
class of persons eligible for the death penalty: "' Arave v. Creech, 507
58
U.S. Ct. 463 (1993), quoting Zant v. Ste hens, 462 U.S. 862, 877 (1983); Lowenfield v. Phelps,
484 U.S. 231, 244 ( 1 988) (discussing narrowing requirement); Barclay v. Florida, 463 U.S. 939,
960 (1983) (Stevens J., concurring) ("[W]e have stressed the necessity of 'genuinely narrowing
the class of persons ligible for the death penalty."'); Walton v. Arizona, 497 U.S. 639, 110 S.
Ct. at 3060-3061 (1 90) (Scalia, J., concurring).
In Lowenfiel v. Phel s, 484 U.S. at 244 the Court stressed the dual function of "genuine
narrowing:"
To p s constitutional muster, a capital sentencing scheme mustgenu' ely narrow the class of persons eligible for the death penaltyand ust reasonably justify the imposition of a more severesente ce on the defendant compared to others found guilty ofmurd r.
"When the purpose f a statutory aggravating circumstance is to enable the sentencer to
distinguish those wh deserve capital punishment from those who do not, the circumstance must
provide a principled asis for doing so." Arave v. Creech, sunra. at 473, citing Lewis v. Jeffers,
497 U.S. 764, 776 (1990) and Godfrey v. Georgia, 446 U.S. 420, 433 (1980).
"Genuine nai
for the "freakish" an,
limits the class of mi
eligibility, it assures
v. Arizona. 110S.0
Furman is a function
penalty.") Second, "
makes the death pem
rowing" serves its Eighth Amendment purpose by reducing the opportunities
l"wanton" imposition of the death penalty in two ways. First, "narrowing"
rderers for whom the death sentence can be considered. By restricting
:hat the death penalty cannot be imposed indiscriminately. See, e.g., Walton
. at 3090 (Stevens, J., dissenting) ("The risk of arbitrariness condemned in
of the size of the class of convicted persons or eligible for the death
iarrowing" limits the death penalty to those murderers whose culpability
1ty particularly appropriate, insuring rationality by avoiding purely arbitrary
59
sentencing. Not all murderers may be sentenced to death, and those who receive the death
penalty must be rati nally distinguishable from those who do not on grounds that reflect their
respective degrees f culpability.
This Court 1 as also acknowledged the constitutional requirement of narrowing in State v.
Henderson (1988) 39 Ohio St.3d 24, 28-29. There the court found the 1981 statute
constitutional, "the hio General Assembly has complied with Zant, supra, by narrowing the
class of death-eligi le aggravated murders."
Here, appell mt Fry challenges the use of aggravated burglary as an aggravating
circumstance and c allenged R.C. 2929.04(A)(7) on the grounds that the aggravating
circumstances of th statute do no more than duplicate the elements of felony aggravated murder
found in R.C. 2903. 1(B). This Court has denied relief on this claim. State v. Bonnell, 61 Ohio
St.3d 179 (1991).
Distinction From P 'or Cases
This case pr sents a unique factual circumstance that distinguishes it from these, past
cases and from the ituation in Lowenfield. Here, the underlying felony of the aggravated
burglary was the ag ravated murder and the underlying felony of the aggravated murder was the
aggravated burglary The use of aggravated burglary as an aggravating circumstance is the
ultimate form of bo tstrapping. Simply put, if this crime had taken place outside of the building,
rather than inside th building, this would not be a death penalty case. See, Tuilaena v.
California, 512 U.S.
permitted to use the
spectrum of facts pri
967, 987-88 (1994) (Blackmun, J., dissenting) ("prosecutors have been
`circumstances of the crime' as an aggravating factor to embrace the entire
;sent in virtually every homicide").
60
The remainin felonies of R.C. 2929.04(A)(7), kidnapping, rape, aggravated arson or
aggravated robbery, 1 require additional actions on the part of the defendant beyond the
aggravated murder. n all other death penalty cases to come before this Court, either another one
or more of the feloni s listed above were present, or one or more of the other aggravating
circumstances in R.C. 2929.04(A).
Furthermore,
under Lowenfield bec
guilt or penalty phase
the guilt phase if the ]
legislature has not de;
guilty of first degree i
defendant is guilty of
must also find the def
Therefore, Ohio does
The second oI
circumstances at the p
aggravating circumst
circumstance is introd
Therefore, the Ohio s1
penalty phase as well.
for felony-murder wit
As argued abo
the Ohio statute as a whole does not satisfy the narrowing requirement
>ause it fails to narrow the class of death eligible defendants at either the
. Lowenfield, 484 U.S. at 246. The narrowing function can be provided at
egislature narrows the definition of capital offenses. Id. However, the Ohio
flned capital offenses. Unlike the statute in Lowenfield, where a fnding of
nurder makes a defendant death eligible; in Ohio a jury finding that a
aggravated murder does not make that person death eligible. An Ohio jury
endant guilty of an aggravating circumstance in R.C. 2929.04(A).
not narrow at the guilt phase.
)tion is to "provide for narrowing by jury findings of aggravating
enalty phase." Id. However, Ohio does not require proof of the
mces at the penalty phase. The evidence supporting the aggravating
luced at the guilt phase and the jury finding is made at the guilt phase.
atute in relation to Aggravated Burglary as an element fails to narrow at the
No effective narrowing is performed when a capital defendant is indicted
h the felony-murder specification.
ve, the appellant has been sentenced to death using aggravated murder as
61
the underlying felon of the aggravated burglary and aggravated burglary as the underlying
felony of the aggrav ted murder. This is bootstrapping to the extreme and does not meet the
mandates of Greizg . Geor ia, 428 U.S. 153 (1976) and its progeny in violation of the Eighth
and Fourteenth Ame dments.
The court's ecision was contrary to this United States Supreme Court precedent because
it erroneously found the Ohio sentencing statute to be identical to the Louisiana statute in
Lowenfield. The co failed to recognize that unlike the Louisiana statute, the Ohio statute does
not narrow at the gu'lt phase by defining a narrow class of capital offenses. By fmding that the
statutes were identic,
statute, is constitutio
to narrow at the gui11
Ohio statute fails to i
unconstitutional as a
As noted, thi:
1, the court was able to argue that the Ohio statute, like the Louisiana
al. However, the court should have determined that the Ohio statute fails
phase and therefore is not identical to the statute in Lowenfield. In fact, the
arrow at either the guilt or sentencing phase and therefore is
gued above.
case has unique factual circumstances. One of the two aggravating
circumstances whichl makes appellant death eligible is the aggravated burglary. However, there
is only an aggravated
aggravated murder is
and constitutes boots
It is clearly ol
unconstitutional. Th
death penalty... [and
burglary because of the aggravated murder and the only reason there is an
because there is an aggravated burglary. The reasoning is entirely circular
Inpping in its most extreme form.
^jectively unreasonable to not find that this sentencing scheme is
s procedure fails to "genuinely narrow the class of persons eligible for the
reasonably justify the imposing of a more severe sentence on the defendant
und guilty of murder." Zantv. Stenhens, 462 U.S. at 877. The appellant iscompared to others f^
62
only death eligible I
When aggravated bi
aggravated murder,
United States Supre
Zant v. Stephens, su
summarized this rec
ecause the crime took place inside the building rather than outside of it.
rglary is used as an aggravating circumstance, where the felony is the
he death penalty becomes mandatory. This violates clearly established
ne Court authority articulated in Gregg v. Georgia, 428 U.S. 153 (1976);
^ra; and Lowenfield v. Phelns, snpra, 244 (1988). The Supreme Court has
airement as follows:
To pass con titutional muster, a capital sentencing scheme must "genuinelynarrow the cj ass of persons eligible for the death penalty and must reasonablyustify the i
2733
position of a more severe sentence on the defendant compared toothers found guilty of murder." Zant v. Stephens, 462 U.S. 862, 877, 103 S. Ct.
, 77 L.2909 d. 2d 235 ( 1983); cf. Gregg v. Georgia, 428 U.S. 153, 96 S. Ct.d. 2d 859 ( 1976). Under the capital sentencing laws of most States,
is re uired during the sentencing phase to fmd at least one aggravatingcircumstanc before it may impose death. Id., at 162-164 (reviewing Georgiasentencing sL heme); Proffitt v. Florida, 428 U.S. 242, 247-250, 96 S. Ct. 2960, 49
( 1976) (reviewing Florida sentencing scheme). By doing so, the jurynarrows the lass of persons eligible for the death penalty according to anobjective legislative definition. Zant, supra, 462 U.S., at 878 ("[S]tatutoryaggravating ircumstances play a constitutionally necessary function at the stageof legislativ definition: they circumscribe the class of persons eligible for thedeath penal ").
As noted abc ve, this Court has also acknowledged the constitutional requirement of
narrowing in State v Henderson (1988) 39 Ohio St.3d 24, 28-29. There this Court found the
1981 statute consti tional; "the Ohio General Assembly has complied with Zant, supra, by
narrowing the class f death-eligible aggravated murders." But Henderson did not directly
address the Aggrava d Burglary statute.
The aggrava ing circumstance in this case was rendered meaningless, because the
aggravated murder s atute is essentially the same. Once the jury found Mr. Fry guilty of
aggravated murder, ey did not even need to think about the aggravating circumstance, because
63
it exactly mirrored t
that the offender wa
aggravated murder v
In finding th
by the United States
e charge. And unlike the Henderson case, there was no additional finding
the principal offender or if not the principal offender committed the
ith prior calculation and design.'
statue constitutional in Henderson, the court relied on the analysis set forth
Supreme Court in Lowenfield supra:
First, the legislature may broadly define capital offenses andprovi e for narrowing by jury findings of aggravatingcire stances at the penalty phase. Second, the legislature mayitself arrow the definition of capital offenses so that the juryfindi g at the guilt phase responds to this concern.
At the time Henders
of aggravated murde
constitutional safegu
provided for no narr(
n was decided the Ohio statute was narrowly defined so that the jury finding
and the additional required finding of the aggravating circumstance met
irds. But now, the legislature has "broadly defined the capital offenses" but
wing by jury findings of aggravating circumstances.
' See R.C. 2929.00)(7).
64
Proposition of Law IXI:
An indictme t which fails to set forth each and every element of the charged offenseis in violatio of the Due Process Clause of both the State and Federal Constitution.
Under the D e Process Clause of the Fourteenth Amendment, a defendant in a criminal
case is protected ag nst conviction except upon proof beyond a reasonable doubt of every
element necessary to constitute the crime with which he is charged. In re Winship, 397 U.S. 358,
364 (1970); Davis v. United States, 160 U.S. 469, 487-88 (1895). Thus, in order for a conviction
to withstand Due Pr cess scrutiny, a defendant must be charged in an indictment which includes
each and every essen ial element of the offense within the specific charge, and the state must
prove each of these e ements beyond a reasonable doubt.
In the present case, the indictment was constitutionally deficient in numerous aspects.
The charges of Aggr, vated Murder do not include the essential elements of the principle charge
of the Aggravated M der, (felony-murder) Count One and the R. C. §2929.04(A)(7). This is the
capital charge. Thu , the appellant was convicted the homicide and specification that were
deficiently charged.
In Count One the principle charge is that the appellant purposely caused the death of
another while commi ing . ... Aggravated Burglary. (Emphasis added) The charge lists the
name of the offense nly. Not a single actual element of the offense was listed by the grand jury.
The statutory section is not listed. The same can be said for R. C. §2929.04(A)(7) specification.
Specifically, ount One of the Indictment reads as follows in relevant part:
. CLAREN E FRY, JR..... did commit the crime of AGGRAVATEDMURDER in at he did purposely cause the death of Tamela Hardison, whilecommitting o attempting to commit, or while fleeing inunediately after
65
committing o attempting to commit Aggravated Burglary, and/or Burglary, inviolation of fiection 2903.01(B) of the Ohio Revised Code,...
Specification One to
..the Aggravcommitting, aattempting toprincipal offei
Similarly, in
Hardison was killed
to commit Felonious
the elements or the
elsewhere within the
On the whole
internally conflicting
Ring Trilogy
ount One reads as follows in relevant part:
ted Murder was committed while CLARENCE FRY, JR. wastempting to commit, or fleeing immediately after committing or:ommit Aggravated Burglary, and CLARENCE FRY, JR. was theder in the commission of the Aggravated Murder. ..
;ount Four, Murder, R. C. §2903.02 (A)/(B) the grand jury found that Ms.
as a proximate result of CLARENCE FRY, JR. committing or attempting
?,ssault or Aggravated Burglary. . ." Again, there was no specification of
lated statutory codes. Significantly, Felonious Assault is not charged
ndictment. The jury had no guidance on considering this offense.
the jury had not guidance in considering the charges. The indictment was
In A rendi v New Jerse , 530 U.S. 466 (2000), the United States Supreme Court held
that the Fifth Amend ent's Due Process Clause and the Sixth Amendment's notice and jury trial
guarantees require th t any fact other than prior conviction that increases the maximum penalty
for a crime must be c arged in an indictment, submitted to a jury, and proved beyond a
reasonable doubt. A rendi at 476, citing Jones v. United States, 526 U.S. 227 (1999). The
Fourteenth Amendm nt commands the same answer when a state statute is involved. The
historical foundation or these principles extends down centuries into the common law. While
judges in this country have long exercised discretion in sentencing, such discretion is bound by
66
the range of sentenci^g options prescribed by the legislature. Auprendi, sunra.
Recently, thelUnited States Supreme Court clarified the case in a capital setting in Ring v.
Arizona, 536 U.S. 5
of the Arizona capit
determine the existe
the "functional equi
existence. Ring, 122
This case con
Jones, 526 U.S. at 22
element of an offense
reasonable doubt as f
4, 122 S.Ct. 2428 (2002). In Ring, the Court struck down a critical aspect
t sentencing procedure, which had allowed the judge rather than the jury to
ce of aggravating factors. Because the aggravating factors were held to be
alent of an element of a greater offense," only the jury could determine their
S.Ct. at 4221, quoting Apprendi, 530 U.S. at 494 n.19.
ludes the so-called Ring Trilogy. It began with the Court's decision in
n.6. As the result of these cases, it is clear, that the each and every
must be set forth in the indictment and found proven guilty beyond a
und by the jury.
In Harris v. Uoited States, 536 U.S.545, 567 ( 2002), the United .States Supreme Court
again noted that:
A crime was rfoindictment anhad attacheddefendant toaccording towould have baggravated o
t alleged, and a criminal prosecution not complete, unless thethe jury verdict included all of the facts to which the legislature
he maximum punishment. Any "fact that . .. exposes the criminalpenalty exceeding the maximum he would receive if punishede facts reflected in the jury verdict alone" the Court concluded,en, under the prevailing historical practice, an element of anense.
Id., quoting from A rendi, 530 U.S. at 483. (emphasis added)
In the present case, th indictment did not include all the facts to which the legislature had
attached the maxim punishment.
Ohio Application
The capital sp cification pursuant to O.R.C. §2929.04(A) elevates Aggravated Murder
67
from a life sentence 00 a possible sentence of death. Under Rine, each and every element of the
capital specification must included in the indictment.
In Joseph v. CCoyle, 469 F.3d 441 (6' Cir. 2006), certiorari denied by Houk v. Joseph,
2007 U.S. LEXIS 30
verdict on each and e
found the defendant i
pursuant to R. C. §25
clearly error.
Joseph ackno
6 (U.S., Mar. 19, 2007), the Sixth Circuit found that the failure to return a
ery element was fatal to a capital specification. In Joseph, the jury found
be the principal offender in felony rather than the aggravated murder
29.04(A)(7). The failure to make a finding on each and every element was
ledged that there was a harmless error aspect to review of the specification
fmdings. In Biros v.l Baglev, 422 F.3d 379, 388 (6th Cir. 2005), the indictment did not include
all elements of the spocification, specifically that Mr. Biros was the principal offender in the
Aggravated Murder. ® ecause there was no other suspect, the error was deemed harmless. See
also See Mitchell v. s arza (Esparza II), 540 U.S. 12, 124 S. Ct. 7, 157 L. Ed. 2d 263 (2003)
(holding the Eighth mendment error is subject to hannless error analysis but finding deficient
indictment to be erro
Here, the erro is not harmless, because although Fry acted alone, there is a real issue as
to his intent upon ent ring the Hardison residence. What was the underlying felony? What were
the elements of the A gravated Burglary? Did all the jury agree as to his purpose or actions
upon entering the ho e?
Even had the hallenged Count One of the indictment referred to a specific statutory
citation, which it faile to do, these counts still would have remained constitutionally deficient.
The reason for the rul that even a citation to the applicable statute is not jurisdictionally
68
sufficient to fill an lement not explicitly pled in the body of the indictment is explained in a
series of federal cas s which deal with the dual role of an indictment, (1) to give the defendant
notice of the crime harged so that he might prepare a defense, and (2) to show that the grand
jury has considered d found all of the elements of the crime charged. It should be noted that
this was the law pri r to the Ring Trilogy.
In United St tes v. Hooker, 841 F.2d 1225 (4th Cir. 1988) (en banc), where an indictment
cited the statute defi ing the federal RICO offense but failed to allege an essential element, that
the enterprise had att effect on interstate commerce, the Fourth Circuit rejected the argument of
the Government tha it was enough that the defendant had actual notice of this element of the
offense.
In the preseoffense [inclthis notice eauthoritiescontain anyAmendmentand found b
Hooker, 841
indictment citing th
instructions nor a pe
upon charges found
The Fourth
case where the indic
but failed to allege
case, the defendant somehow acquired notice of the nature of theding the element not alleged]. But even if we were to assume thatanated from the indictment (as assumption not justified under theour opinion) we would still be left with a document which did notart of one element of the offense, and thus did not satisfy the Fourthequirement that all elements of the offense have been consideredthe grand jury.. . .
.2d at 1230. The absence of the allegation of one of the elements in an
applicable statute was held to require vacating the conviction. "Neither
it jury verdict can satisfy after the fact the Fifth Amendment right to be tried
y a grand jury." Id. at 1232.
reuit reached the same conclusion n another case decided the same day in a
ent cited the statutes making it a crime to possess and distribute cocaine
e scienter element (that the defendants acted "knowingly and intentionally").
United States v. Punb, 841 F.2d 1235, 1239 (4th Cir. 1988) (en banc).
69
[T]he districalso cited thwell as the 1the applicabloffense. Andirectly, andelements necUnited StateFurthermore,consideredfails to satisfor an infam
court ... held that scienter was adequately charged if the indictmentstatute itself. That position is contrary to our own precedents as
in the majority of the circuits.... We hold that a mere citation tostatute does not give the defendant notice of the nature of the
ndictment that must rely on a statutory citation does not "fully,xpressly, without any uncertainty or ainbiguity, set forth all thessary to constitute the offense intended to be punished." Hamling v.
, 418 U.S. 87, 117, 41 L.Ed.2d 590, 94 S.Ct. 2887 (1974).a statutory citation does not ensure that the grand jury hasd found all essential elements of the offense charged. It thereforethe Fifth Amendment guarantee that no person be held to answer
us crime unless on indictment of a grand jury.
39. That same result was reached by a number of other federal circuits
based on the same ra 'onale that a mere citation to the statute fails to show that the grand jury
considered and foun the element of the offense not explicitly alleged in the indictment. See,
United States v. S i er 180 F.3d 514, 516 (3d Cir. 1999) (failure to explicitly allege the
[N]otice alonindictment. Ithe Fourth Ciwas an essentinsufficient. Iindictment. 'Amendment,elements to b
1999).
Du Bo's convwas prosecuteUnited Statesmost valuablethe accused,testimony . . .
cannot form a sufficient basis to validate ajurisdictionally deficientUnited States v. Hooker, 841 F.2d 1225 (4th Cir. 1988) (en banc),
cuit Court of Appeals held that "an effect on interstate commerce"al element of a RICO offense without which an indictment wasfurther held that notice alone was insufficient to validate thee inclusion of all of the elements ... derives from the Fifth
hich requires that the grand jury have considered and found allpresent." Id. at 1230.
6. See United States v. Du Bo, 186 F.3d 1177, 1179-1180 (9th Cir.
tion requires reversal because his indictment fails to ensure that heonly "on the basis of the facts presented to the grand jury ...."Rosi, 27 F.3d 409, 414 (9th Cir: 1994). At common law, "thenction of grand jury was ... to stand between the prosecutor and
d to detennine whether the charge was founded upon credible" Hale v. Henkel, 201 U.S. 43, 59, 50 L.Ed. 652, 26 S.Ct. 370
70
(1906). ... F'ling to enforce this requirement would allow a court to "guess atwhat was in t e minds of the grand jury at the time they returned the indictment ..
United S tes v. Keith, 605 F.2d 462, 464 (9th Cir. 1979) (citing Russell v.United States 369 U.S. 749, 770, 8 L.Ed.2d 240, 82 S.Ct. 1038 (1962)). Suchguessing wo d"deprive the defendant of a basic protection that the grand jurywas designed to secure," by allowing a defendant to be convicted "on the basis offacts not fohim." Id. (cijury receivedknow if theBo. See Stir(1960) (no cocharge"). Re
d by, and perhaps not even presented to, the grand jury that indictedng Russell, 369 U.S. at 770). We may only guess whether the grandevidence of, and actually passed on, Du Bo's intent. We may neverand jury would have been willing to ascribe criminal intent to Due v. United States, 361 U.S. 212, 217, 4 L.Ed.2d 252, 80 S.Ct. 270
may "know" what the grand jury "would have been willing tosing to reverse in such a situation would impermissibly allow
conviction onStates v. Mill
Du Bo, 186 F.3d at 1
Finally, it do
elements. Each char
v. Yefsky, 994 F.2d
R.C. §2903.01(B) un
to R.C. §2929.04(A)(
Ohio Grand Jury Rea
Ohio has pro
a charge never considered by the grand jury. See id. at 219; Unitedr, 471 U.S. 130, 139-140, 85 L.Ed.2d 99, 105 S.Ct. 1811 (1985).
79-1180. See United States v. Zanneer, 848 F.2d 923, 925 (8th Cir. 1988).
s not matter if the felonies alleged in the indictment included the necessary
e or count must be viewed independently of the other counts. United States
85, 894 (15` Cir. 1993). The convictions of Aggravated Murder pursuant to
er counts Two through Six, and the felony-murder specifications pursuant
) are invalid.
ement
is to go back to the grand jury and re-indict if possible. State v. Dillev
d 254. Where an essential element of the offense is not listed in the
indictment to supply essential elements of the crime. State v. Ahedo
h and every element of an offense charged. It is unequivocal that the trial
ded an independent and distinct right requiring the grand jury to find
(1989), 47 Ohio St.3dl 20. In Dille this Court amended the indictment with a sentencing
to R.C. §2941.143 without presenting to specification to the grand jury.
71
to include this specification did not alter the possible defense to the charge
[tjhe state m4y not avoid the clear mandates of R.C. §2941.143 and circumventthe grand j
Dilley, 47 Ohio St.3
This Court h
subject matter in que
Ohio St.3d 475, this
at 22-23.
s required strict adherence to the grand jury review requirement where the
tion is a material element of the offense. In State v. Headley (1983), 6
ourt ruled:
Section 10 o Article I of the Ohio Constitution provides that "...no person shall beheld to answ r for a capital, or otherwise infamous crime, unless on presentmentor indictment of a grand jury..." This provision guarantees the accused that theessential fact constituting the offense for which he is tried will be found in theindictment o the grand jury. (Citations omitted)
Headley, 6 Ohio St.3 at 477 (emphasis added)
The Headlev ase cited the general precedent from its earlier reasoning in State v.
Wozniak (1961), 17 Ohio St. 515. This Court held here that:
Where one o the vital elements identifying the crime is omitted from theindictment, it is defective and cannot be cured by the court as such procedurewould permit the court to convict the accused on a charge essentially differentfrom that fo id by the grand jury.
Wozniak, 172 Ohio t. at 520.
In its more,re ent decisiona, this Court has backed off the above stringent grand jury
requirements. State . M h(1992), 65 Ohio St.3d 554, 583; State v. Skatzes, 104 Ohio St.3d
195, 2004 Ohio 6391 30. Although not as strict as the federal constitutional grand jury
requirement, this Co , in spite of allowing the prosecutor a standard of substantial compliance
to grand jury require ents instead of strict requirements, has recently set a minimum standard.
72
10 Ohio St. 3d 403, 2006 Ohio 4007 (2006):
Therefore, a indictment that tracks the language of the charged offense andidentifres a redicate offense by reference to the statute number need not alsoinclude each element of the predicate offense in the indictment. The state's failureto list the el ents of a predicate offense in the indictment in no way prevents theaccused fro receiving adequate notice of the charges against him.
Id. 406. (Emphasis
In Count On
failed to either track
reference to the sta
Five. It is simply no
finding probable cau
Buehner standard.
Thus, the co
Sixth, Eighth and Fo
I of the Ohio Constit
ded)
, the indictment, in relation to the element of the Aggravated Burglary,
the language of the charged offense or identify the predicate offense by
e number. Nor does the count refer to or incorporate the charge in Count
known what theory the grand jury considered or set of facts it considered in
e for Aggravated Burglary. This count does not comport with even the
ictions and sentence of death in this matter are in violation of the Fifth,
enth Amendments to the United States Constitution and Section 10, Art.
on.
73
Proposition of Law XII:
Where disti ct charges of the same indictment reflect that the grand jurymade incons stent findings as to the intent on the same actions of thedefendant, t e facts allowing the lesser intent finding are favorable to thedefendant a d must be provided to the defense in discovery.
Here, that sta e charged and argued that the appellant Clarence Fry entered the residence
of Tamela Hardison or the purpose of killing her with prior calculation and design. Count Two
of Indictment. Contr ily, the state also charged in Count Five, Aggravated Burglary, that the
appellant entered the house, not to kill with prior calculation and design, but to inflict physical
harm on the victim.
defense, that the ho
formed until Fry was
Second Specification
Hardison, either in re
offense to which she
Consistent wi
is Count Three, Invol
only that the death
Aggravated Burglary,
is grand jury finding would be consistent with the argument of the
cide was not prior calculation and design and that the intent was not
inside the residence. This would also be a direct contradiction of the
of the capital count, that Fry entered the resident with a purpose to kill
liation for being a witness or to prevent her from testifying about an
as a witness.
the defense that there was never a specific intent to kill Hardison by Fry
tary Manslaughter R. C. §2903.04(A). In this count, the grand jury found
s proximately caused by the commission of "Domestic Violence and/or
and/or Intimidation of Crime Victim or Witness. . ." No purpose to kill
djury.
Similarly, in Qount Four, Murder, R. C. §2903.02 (A)/(B) the grand jury found that Ms.
ssault or Aggravated Burglary. . ." Again, there was no specific intent
s a proximate result of CLARENCE FRY, JR. committing or attempting
74
found by the grand j
Any testimo
intent on the part of
to trial. Some evide
or found by the gran
entitled to know wh
record bears no indic
in relation to this charge.
y or evidence presented to the grand jury resulting in the finding of a lesser
he appellant is favorable evidence and must be provided to the defense prior
ce mitigating against a finding of specific intent must have been presented
jury. There is an inherent inconsistency in the counts. The defense was
the grand jury found less than a purposeful killing on two counts. The
ition that the grand jury testimony was ever ordered or prepared, therefore,
: provided
fendant is entitled to disclosure by the prosecution of all favorable evidence.
the discovery was no
A criminal de
Brady v. Maryland (1^963), 373 U.S. 83. Included in the realm of such evidence is disclosure of
all proniises or grant
Where, had exculpa
would have created a
This position
occasions. It is unqu
evidence. When the
defendant's due proc
States v. Bradv, sup
evidence is violative
of immunity or leniency offered a witness in exchange for his testimony.
ry evidence been properly provided to the defense, the use of such evidence
reasonable probability that the outcome would have been different.
vas established by the United States Supreme Court on numerous
stioned that the government has a continuing duty to disclose exculpatory
rosecution withholds exculpatory evidence in a criminal proceeding, the
ss protections under the Fourteenth Amendment are violated. United
What is germane to this case is that the suppression of exculpatory
f due process where the evidence is material, irrespective of the good faith
secution. United States v. Bradv, at 1196-97.
issue of exculpatory evidence withholding is not just the willfulness of the
^teriality of the evidence in question. United States v. Baglev, 473 U.S.
or bad faith of the pro
The key to the
prosecution but the m
75
667 (1985). Eviden
evidence been disclo
The above m
withheld. This is be
undennine confidenc
The United S
U.S. 419 (1995). In
e is deemed material where there is a reasonable probability that, had the
ed to the defense, the result of the proceeding would have been different.
teriality standard is applicable to all cases where exculpatory evidence is
ause a"reasonable probability" is defined as a probability sufficient to
in the outcome. Pennsylvania v. Ritchie, 480 U.S. 39 (1987).
tes Supreme Court affirmed the above principles in Kyles v. Whitley, 514
les, the Supreme Court clarified the term "materiality" for Brady
purposes. The Court found that a showing of materiality does not require demonstration by a
preponderance of the evidence that disclosure would have ultimately resulted in the defendant's
acquittal. Further, m teriality is not a sufficiency test. The Court found that a Bradv violation is
not demonstrated by howing that some exculpatory evidence should have been provided, but by
showing that favorab e evidence could reasonably have put the whole case in such a different
light as to undermine the confidence in the verdict.
Brad v. Mar land, sunra requires the revealing of "favorable evidence," not just
"exculpatory" eviden e. Pursuant to this rule, the government is required to tum over evidence
in its possession that s both favorable to the accused and material to guilt or punishment. United
States v. Bencs 28 F. d 555, 560 (6th Cir.1994).
a. The S ate may have presented exculpatory, impeachment, or mitigatingevide ce to the Grand Jury.
It is not Imo what may have been said in the grand jury. Perhaps the prosecution
presented evidence of the lesser intent to allow the findings of probable cause for felonious
assault and involuntaiy manslaughter. The test for whether grand jury transcripts should be
76
he transcripts would reveal exculpatory evidence sufficient to overcome the
policy of secrecy. U#ited States v. Short, 671 F.2d 178, 187 (6`h Cir. 1982); see also Brady v.
Marvlan d, 373 U.S.
conclusion is discov
that would exculpate
fmding that Fry purp
Three and Four are d
If the state ar
prior calculation and
purposeful intent? S
in the Aggravated B
Lowenfield problem.
3(1963). The evidence upon which the grand jury relied in reaching that
ble, pursuant to Brad . Evidence that the grand jury believed evidence
ry with regard to Counts Oneand Two because those counts require a
sely or with prior calculation and design killed Ms. Hardison. Counts
ectly contrary to a purposeful killing and consistent with Fry's statements.
ues that this issue falls because the evidence only supports an entry with
esign to commit the homicide, how was Fry indicted with a less than
ch an argument would also create the position that the injury and/or felony
glary was in all actuality, the Aggravated Murder, thus creating the
See Proposition of Law X.
In State v. Gr ell, (1989) 45 Ohio St.3d 4, this Court ordered all grand jury proceedings
to be recorded. In do' g so, the following reasons were cited:
(1) ensuring t at the defendant may impeach a prosecution witness on the basis of prior
inconsistent st tements before the grand jury,
(2) ensuring t the testimony received by the grand jury is trustworthy,
(3) restraining rosecutorial abuses before the grand jury, and
(4) supporting e case made by the prosecution at trial.
The inherently inconsistent charges in Mr. Fry's case required that the transcript of the
grand jury minutes be supplied to the defense. The exact wording does not need to be revealed
here to understand tha favorable evidence may not have been supplied to the defense.
77
The state m^y not charge a defendant with one theory of guilt and argue fora conviction on a second and inconsistent theory of the same act.
In Count On , Aggravated Murder, the principle charge is that the appellant purposely
caused the death of other while committing an Aggravated Burglary. In Count Two,
Aggravated Murder, e appellant was charged with committing the homicide withprior
calculation and desi n. In Count Four, Murder, R. C. §2903.02 (A)/(B) the grand jury found that
Ms. Hardison was ki led "as a proximate result of CLARENCE FRY, JR. committing or
attempting to commi
intent to kill found i
The state alle
manslaughter, Count
presented to the jury.
and design (Count T
commission of anoth
minds of the jury.
Felonious Assault or Aggravated Burglary. . ." There was no specific
the latter two offenses.
ed four theories of the homicide in the indictment including involuntary
Three, which was dismissed pre-trial. Three different mens reas were
According to the state, Fry committed the offense with prior calculation
o), purposefully (Count One) and as the proximate cause of the
r offense (Count Four). Indict for everything and see what sticks in the
Several feder
theories to secure co
crime violates the du
circuits have found, or implied, that the use of inconsistent, irreconcilable
victions against more than one defendant in prosecutions for the same
process clause. See, e.g., Smith v. Groose, 205 F.3d 1045 (8th Cir. 2000);
120 F.3d 1045 (9th Cir. 1997) (en banc), vacated on other grounds, 523Thompson v. Caldero
U.S. 538, 140 L. Ed.
1985) (en banc) (Clar
d 728, 118 S. Ct. 1489 (1998); Drake v. Kemro. 762 F.2d 1449 (11th Cir.
, J., specially concurring); cf. Nichols v. Scott, 69 F.3d 1255 (5th Cir.
78
1995) (involving a si uation where both defendants had shot at the victim and it was unclear
whose bullet had act lly hit and killed the victim; the court found that the two theories advanced
by the prosecution re not inconsistent because both defendants could have been convicted
under the law of partes).
In Smith v. oose, the Eighth Circuit considered a case in which a prosecutor had used
two different, confli 'ng statements by a co-defendant at successive trials to convict the
petitioner at the first rial and a second individual at a second trial. See Smith v. Groose, 205 F.3d
at 1049. That case i volved a group of four young men who were looking for homes to
burglarize one eveni g. In the course of their search, they saw another group of burglars breaking
into a home. They
The residents were
the murders took pla
of the four men first
participation of the g
men from his group
prosecutor then used
groups. See id. at 10
Examining th
factually contradicto
found that in order to
theories "must exist
Id. This constitutes a
lized they knew these men and decided to help them break into the house.
urdered in the course of the burglary. The primary issue at trial was whether
e before or after the four young men began participating in the offense. One
old the police that the other group had committed the murders without the
oup of four. Two days later, he told police that he had seen one of the four
bbing the victims with a pocketknife; he later recanted this story. The
oth statements to obtain convictions against men in each of the two
7-49.
record before it, the Eighth Circuit held that" the use of inherently
theories violates the principles of due process." Id. at 1052. The court
amount to a due process violation, an inconsistency in the prosecutor's
the core of the prosecutor's case against defendants for the same crime."
ue process violation because it renders convictions unreliable, given that
79
"the state's duty to it citizens does not allow it to pursue as many convictions as possible without
regard to fairness an the search for truth." Id. at 1051.
Finally, the inth Circuit considered a similar situation in Thompson. In that case, the
prosecutor argued at one trial that, based on jailhouse informant testimony, one defendant had
committed a rape an murder. At a second trial, the prosecutor used different jailhouse
informants to argue t at the second defendant had the motive and disposition to conunit the
crimes. A plurality f the en banc Ninth Circuit, specifically excluding situations where new
evidence comes to li t; found that a prosecutor cannot use inconsistent theories of the same
crime in order to sec re multiple convictions. See id. at 1058. The court echoed Judge Clark's
concurrence in an El venth Circuit case which, although it granted habeas relief on alternate
grounds, also involv d inconsistent theories:
The prosecut r's theories of the same crime in the two different trials negate oneanother. They are totally inconsistent. This flip flopping of theories of the offensewas inherentl unfair. Under the peculiar facts of this case the actions by theprosecutor vi late the fundamental fairness essential to the very concept ofjustice... Th state cannot divide and conquer in this manner. Such actions reducecriminal trials to mere gamesmanship and rob them of their supposed search forthe truth.
Thompson 120 F.3d t 1059 (quoting Drake, 762 F.2d at 1479 (Clark, J., concurring)).
As the First C rcuit recognized in United States v. Kattar, 840 F.2d 118 (1 st Cir. 1988),
prosecutorial positio switching casts a long shadow on a prosecution:
[An] inconsist ncy [in litigation positions] is troubling where its source is theprosecution of the federal government. It is one thing for private counsel tocharacterize c ents in contrasting ways in two separate litigations, because thecounsel there 's required under our adversary system to defend its clients in themost vigorous fair manner possible--counsel is expected to put the best possiblegloss on a clie t's case. The function of the United States Attorney's Office,however, is n t merely to prosecute crimes, but also to make certain that the truth
80
is honored tc} the fullest extent possible during the course of the criminalprosecution Ond trial.
r^r
Thus, it is di turbing to see the Justice Department change the color of its stripesto such a sig 'ficant degree, portraying an organization, individual or series ofevents vario sly as virtuous and honorable or as corrupt and perfidious, dependingon the strate ic necessities of the separate litigations.
Kattaz 840 F.2d at 1^27. See also Jacobs v. Scott , 115 S.Ct. 711, 712 (1995) (Stevens, J.,
dissenting from deni
the sovereign itself
of its citizens"') (cit
It is even mo
same defendants in
prohibit such condu
abuse the judicial pr
and then another rec
Line R. Co., 737 F.2
those who "play 'fas
means of obtaning
Central R. Co., 203
1 of certiorari) ("I have long believed that serious questions are raised 'when
es inconsistent positions in two separate criminal proceedings against two
ions omitted).
e"disturbing" for the government to take inconsistent positions against the
e same series of cases. The doctrines of equitable and judicial estoppel
t by private parties in civil cases. "[A] party should not be permitted to
cess by obtaining one recovery based first on affirming a certain set of facts
very based on denying the same state of facts." DeSong v. Seaboard Coast
1520, 1522 n. 5(11th Cir. 1984). Estoppel doctrines are directed toward
and loose' with the courts" using "intentional self-contradiction ... as a
ir advantage in a forum designed for suitors seeking justice," Scarano v.
.2d 510, 513 (3d Cir. 1953), those who blow "hot and cold as the occasion
demands," Allen v. Zurich Insurance Co., 667 F.2d 1162, 1167 n. 3 (4th Cir. 1982), and those
who engage in "cold
939 (D.C. Cir. 1980)
When the go
anipulation" of the judicial system. Konstantinidis v. Chen, 626 F.2d 933,
ernment employs "intentional self-contradiction" during the course of a
81
criminal prosecutio , it violates the principles of fandamental fairness embodied in the Due
Process Clause. of Fifth Amendment. An analogous situation was addressed in Drake v.
Kemn, 762 F.2d 14 9(11th Cir. 1985) (en banc). In that case, Campbell and Drake were both
charged with capital murder but were tried separately. In Campbell's trial, the prosecutor
presented evidence
Campbell lied under
cooperating with the
prosecutor put on C
at 1471-42 (Clark, J.
State's use of such
banc, noted the issu
improper. Id. at 145
In a specially
positions violated du
sought to vacate C
prosecutor obtained
Id. Moreover, Judge
conquer ... reduce[s]
d argued to the jury that Campbell beat the victim to death and that
oath when he claimed he did not. After Campbell was convicted, he began
State of Georgia and testified against Drake. Thus, at Drake's trial, the same
mpbell to testify that Drake, not Campbell, comnutted the murder. 762 F.2d
specially concurring). Following his conviction, Drake challenged the
onsistent theories as a violation of due process. This Court, sitting en
but declined to resolve it, since it found the jury instructions to be
concurring opinion, Judge Clark argued that the prosecutor's inconsistent
process. Id. at 1478-79 (citations omitted). Since the prosecutor never
pbell's conviction, Judge Clark drew the "inescapable" conclusion "that the
lenry Drake's conviction through the use of testimony he did not believe."
Clark recognized that such "flip flopping of theories" to "divide and
riminal trials to mere gamesmanship and rob[s] them of their supposed
>r truth." Id.
cuit in Thompson v. Calderon, snnra, relying on Judge Clark's concurrence
^beas petition where the government similarly relied upon inconsistent
Itiple convictions. The court recognized that "it is well established that
purpose of a search fi
The Ninth Ci
in Drake, granted a
theories to secure mu
82
when no new signif
defendants at separ
Thompson, 120 F.3
fundamentally inco:
1055.
cant evidence comes to light a prosecutor cannot, in order to convict two
te trials, offer inconsistent theories and facts regarding the same crime."
I at 1058. Indeed, the Thompson court found "the prosecutor s use of
isistent theories" to constitute a form of "prosecutorial misconduct." Id. at
The instant
"use fundamentally
committed the homi
apparently no purpo
The use of such "fli
mere garnesmanship
could not form the b
reversal of Fry's ho
ase differs from Drake and Thompson only in that the state herein sought to
nconsistent theories" simultaneously. The State argued that the appellant
ide with an intent of prior calculation and design, purposely and with
e except that death was caused as the proximate cause of another action.
flopping of theories" to "divide and conquer" reduced the trial herein "to
" The state's simultaneous use of multiple intents, at least one of which
sis of a death option is barred by federal due process and requires the
icide convictions.
83
A jury ver ict of guilty must be based upon a unanimous finding of proofbeyond a r asonable doubt as to each element of the charged offense. Wherethe jury is ncouraged to find either one of two distinct acts as the basis forthe particu r element, a subsequent conviction is invalid.
It is axioma ' c that the jury must find that the state proved its case against a defendant
beyond a reasonabl doubt as to each and every element of the offense charged. In order that this
may be accomplish d, the charges must set forth circumstances with sufficient specificity that
allow the jury to fin the requisite standard of proof. Where the indictment, bill of particulars,
arbwment of the stat and jury charge allows that jury to base its verdict on alternative factual
theories rather than pon a single incident, the resultant verdict is not unanimous. Richardson v.
United States, 526 L .S. 813 (1999).
This issue w lks hand-in-hand with the specificity of indictment problem addressed
above. It is the lack of properly indicting which results in the federal due process violations
found here.
An example f the lack of unanimity within a specific count occurred in the appellant's
case is as follows. he state charged in Count Ten of the indictment with Menacing by Stalking,
R. C. § 2903.211(A) The indictment states as follows in relevant part:
... did com it the crime of Menacing by Stalking in the he did, by engaging in apattern of co duct, knowingly cause Tamela Hardison to believe that ClarenceFry, Jr. woul cause harm or mental distress to Tamela Hardison and, incommitting e offense, the offender made a threat of physical harm to or againstthe victim, d/or, in committing the offense, the offender trespassed on the landor premises here the victim lives, is employed, or attends school, and or, theoffender has history of violence toward the victim or any other person or ahistory of oth r violent acts toward the victim or any other person, and/or, whilecommitting e offense, the offender had a deadly weapon on or about his person
84
or under his Icontrol, . . .
The proble here is that this indictment provided multiple theories of how the offense
occurred. The char e and subsequent jury instructions allowed the jury to return a verdict
without a unanimou decision as to which theory or elements applied to the appellant's case. The
charge allowed the ollowing scenarios:
1 The ffender made a threat of physical harm to or against the victim, and/or,
2. in co
the
mitting the offense, the offender trespassed on the land or premises where
ctim lives, is employed, or attends school, and/or,
3. the o ender has a history of violence toward the victim or any other person or a
histo of other violent acts toward the victim or any other person, and/or,
4. whil committing the offense, the offender had a deadly weapon on or about his
perso or under his control.
The problem arises because a segment of the jury may have found sufficient proof under
the one of the above scenarios and not another The remainder of the jury may have found the
opposite to be true. 'rhus, although all twelve jurors found that the appellant had committed the
offense, the verdict as not unanimous as to any of the individual incidents. Thus, the cross-
appellant should hav been acquitted of the charge.
This also hol s true in the following counts. The violative language is set forth in
relevant part:
a. Speci ication Two to Count One (Aggravated Murder)
... T ela Hardison, the victim of the Aggravated Murder, was a witnessto an offense d was purposely killed to prevent her testimony in another
85
criminal prceeding ... OR Tamela Hardison was a witness to an offense and waspurposely killed in retaliation for her testimony...
(Emphasis supplie(
It must be noted tlv
proceeding. Filing
b. Cou
. . .trespassestructure, aphysical harperson.
in original)
t there was no evidence that Ms. Hardison actually testified in a former
complaint is not testimony.
t Five (Aggravated Burglary)
0 in an occupied structure... with purpose to commit in saidiminal offense, and ... inflicted, threatened or attempted to inflicton Tamela Hardison, and/or ... had a deadly weapon .... on his
The element
The jury instruction
enabled to decide th
where the verdict m;
The court de
tenn "criminal offer
all the theories and d
with a knife does no
from domestic viole
between such as mu
Similarly, the
1847-48) Thejury ci
in another criminal p
of the Aggravated Burglary above correspond to Felonious Assault, R. C. §
reflected the above charges. In all of the above charges, the jury was
unanimity of the elements in the alternative, allowing for convictions even
y have been split.
ined aggravated burglary consistent with the indictment in Count Five. The
;e" was not defined. (T. 1844-45) Thus, the jury was free to chose amongst
harges in the indictment with no unanimity. The infliction of physical harm
limit the considerations. The knife wound is consistent with all charges,
ce or intimidation to Aggravated Murder, including all the offenses in
der and involuntary manslaughter.
court read the R. C. §2929.07(A)(8) specification in the disjunctive. (T.
uld have found either that the she was killed to prevent her from testifying
oceeding or was in retaliation for have testified in another proceeding. This
is particularly interes^ing here as Hardison had not testified in another proceeding. There was no
86
imminent testimon on July 18, 2005, assault charge. There was no indication whether the
matter would be ple or taken to trial. It was not charged as a felony domestic violence until
after her death. Fry himself believed his acts to be a misdemeanor an so expressed to the court.
(T. 1899-1900)
Due Process Violati n
Due process equires that a verdict be unanimous as to each element of the charged
offense. It is unders ood that there are some statutory schemes in which a jury need not decide
unanimously which f several possible sets of underlying facts the defendant committed to make
up a particular elem nt the crime. Schad v. Arizona, 501 U.S. 624, 631-632 (1991) (plurality
opinion). In review' g such cases, it must therefore be determined whether the statute in
question creates an eceptable "series" of facts, in which the jury may choose as noted above, or
whether the statute eates a single element, in which unaniniity is required. United States v.
Richardson, 526 U. . at 817-818. Schad v. Arizona, 501 U.S. at 632-633 (plurality opinion).
This Court h addressed this issue. In State v. Johnson (1989), 46 Ohio St. 3d 96, the
Court held:
...if a single ount can be divided into two or more "distinct, conceptualgroupings," t e jury must be instructed specifically that it must unanimouslyconclude tha the defendant committed acts falling within such grouping in orderto reach a gu lty verdict.
Johnson, at 104.
The listed ch ges all contain distinct conceptual groupings. For instance, in specification
Two to Count One, e jury was required to decide whether Fry committed the homicide to
prevent Ms. Hardiso from testifying in the future or because she had testified in the past against
87
him. These are two distinct means of committing the offense. The twelve jurors may not have
agreed as to which pplied. Six may have believed the former and six may have believed that
latter theory. Neve eless, all twelve believed he did one or the other. This may have resulted in
a conviction althou h the jury failed to reach an agreement as to which element formed the basis
of the offense.
Because the ury was not instructed that it must unanimously conclude which act of the
appellant committe , the specification must fall. The same principle applies to the other cited
violations.
88
Proposition of Law XV:
Where theresultantsethe considei
In the trial c
recited the convictio
However, the court
such, the court impr
R. C. §2929.03(F) o
ial court fails to merge convictions and capital specifications, thetence is void or voidable as the weighing process is tainted withition of improper aggravating factors.
urt's sentencing order filed pursuant to R. C. §2929.03(F), the trial court
s of Count one Aggravated Murder and the two capital specifications.
ailed merged the specifications before conducting the weighing process. As
m perly considered both statutory aggravators when determining the sentence.
inion at p. 10.
Failure to meree spe
"[W]here tw
course of conduct an
ifications
P or more aggravating circumstances arise from the same act or indivisible
I are thus duplicative, the duplicative aggravating circumstances will be
merged for putposes lof sentencing." State v. Jenkins (1984), 15 Ohio St.3d 164, paragraph five
of the syllabus.; Stat v. S isak (1988), 36 Ohio St.3d 80, 84. If, for example, aggravated
burglary and kidnap ing are allied offenses of similar import, merger is required. See Jenkins, 15
Ohio St.3d at 197, fn 27. "Allied offenses of similar import are those offenses whose elements
correspond to such a egree that the commission of one offense will result in the commission of
the other." State v. 'tchell (1983), 6 Ohio St.3d 416, 418. If a defendant is convicted of allied
offenses of similar i port, the court must examine his conduct to determine "whether the
offenses were commi ed separately or with a separate animus as to each." Mitchell. 6 Ohio St.3d
at 418.
Merely becau e two specifications can be indicted and found from the facts does not
89
mean that they reprI
appropriateness of c
in order to narrow ti
(1983), 462 U.S. 86
Proving two
additionally proscril
sent separate aggravating circumstances for purposes of determining the
eath as a sentence. Aggravating circumstances in a capital case are required
ie class of aggravated murders to those eligible for death. Zant v. Ste hens
Z; Barclay v. Florida (1983), 463 U.S. 939.
or more specifications out of the same course of conduct does not
)e any more severe conduct but merely loads the scales in the weighing
process so that no tount of mitigation could outweigh the specifications.
The Jenkins ourt recognized that the duplication of aggravating circumstances
impermissibly tippe the weighing process in favor of death and defeated the constitutional
requirement of relia ility in capital sentencing determinations:
The use in t penalty phase of both these special circumstance allegations thusartificially i ates the particular circumstances of the crime and strays from thehigh courts andate that the state tailor and apply its law in a manner that avoidsthe arbitrary d capricious infliction of the death penalty.' (Godfrey v. Georgia v.Georgia, 466 U.S. 420 (1980) at p. 428...) The United States Supreme Courtrequires that e capital-sentencing procedure must be one that'guides and focusesthe jury's obj etive consideration of the particularized circumstances of theindividual of ense and the individual offender before it can impose a sentence ofdeath.' (Jure v. Texas, 428 U.S. 262 (1976), at pp. 273-274...) That requirementis not met in system where the jury considers the same act or an indivisiblecourse of co duct to be more than one special circumstance.
Present Case
In the case a bar, the trial court assessed two separate aggravating circumstances. The R.
C. § 2929.04(A)(7) s ecification and the R. C. §2929.04(A)(8) specifications must merge. The
appellant possessed e same animus for both specifications. The homicide was one act and one
intent. According to one prosecutor theory, the felony for the Aggravated Burglary was the
killing of a witness. he specifications arise from the same indivisible course of conduct and are
90
impermissibly dupli ative.
Part of the p ejudice in failing to bring a proper indictment reveals itself here. The basis
for the specification are unclear. For instance, the felony for the Aggravated Burglary was not
named in the count f elsewhere. Within the Aggravated Burglary Count, the act of violence or
injury was the same act with cause the killing of the witness. There was not other act. However,
if the grand jury fo d that the felony was a felonious assault, then there was no purpose to kill
and the specificatio would be rendered irrelevant. Due process would require that because
neither the Bill of P " culars or the indictment specified the specifics of the Aggravated Burglary
charge, the statutory aggravators be merged.
The failure o the trial court to address and merge the felony-murder specifications
pursuant to R.C. §2 29.04(A)(7) resulted in a sentence that was in violation of the Fifth, Sixth,
Eighth and Fourteen h Amendments of the United States Constitution.
91
A trial courjury deliberaggravatorsonly one sta
As noted in
have been merged fi
2929.04(A)(7) (prin
R. C. §2929.04(A)(
into one. As the kill
considered as a sep
considered only one
Double Jeol2Kdy Co
The Double
protects against a se
second prosecution
punishments for the
for the determinatio
was pointed to by fe
distinguishable to pe
promulgated by the
U.S. 299, at 304:
"* * * where
must merge capital specifications where warranted prior to thetions on the appropriate penalty. Where two statutoryare merged, the jury must be instructed that it is to considerutory aggravator in the weighing process.
e previous Proposition of Law, the two statutory aggravating factors should
sentencing considerations. The jury found the presence of the R. C. §
iple in aggravate murder during aggravated burglary) specification and the
) (killing of a witness). These two specifications should have been merged
ng of a witness was an element of the aggravated burglary, it cannot be
ate and distinct act or intent by the appellant. The jury should have
atutory aggravating circumstance.
siderations
eopardy Clause of the Fifth Amendment to the United States Constitution
ond prosecution for the same offense after acquittal; it protects against a
r the same offense after conviction; and it protects against multiple
ame offense. North Carolina v. Pearce (1969), 395 U.S. 711. The standard
of whether this clause had been violated was set forth the test which usually
eral courts for determining whether two offenses are sufficiently
it the imposition of multiple or cumulative punishment, was the one
nited States Supreme Court in Blockbureer v. United States (1932), 284
he same act or transaction constitutes a violation of two distinct
92
statutory pro isrons, the test to be applied to determine whether there are twooffenses or o ly one, is whether each provision requires proof of a fact which theother does n t."
As the Unite States Supreme Court's interpretation of the double jeopardy evolved, so
did that of the this C urt, which is reflected in its interpretation of the allied offense statute, R.C.
§2941.25. In Albe az v. United States (1981), 450 U.S. 333, the majority of the court implied
that where it is clear that the legislative branch intends the imposition of multiple punishments,
then imposition of ultiple sentences where a defendant is convicted at a single criminal trial of
two offenses, which would constitute only a single offense under the Blockbureer test, does not
violate the Double J opardy Clause. Thus, if the Ohio courts were to follow the approach of the
Albernaz case, the d termination of whether a double jeopardy violation exists would turn on
whether any express on of legislative intent can be found in R.C. §2941.25.
In State v. R ce (1999), 85 Ohio St.3d 632, 634, this Court set forth the appropriate
analysis to be used i determining whether two offenses are the same offense for double jeopardy
purposes. The court led that the elements of alleged allied offenses are to be compared in the
abstract, overruling rior cases and language to the contrary. Id. at 632, paragraph one of the
syllabus.
Under Rance when determining whether two or more offenses are allied offenses of
similar import, the c urt should assess, by aligning the elements of each crime in the abstract,
whether the statuto elements of the crimes "con•espond to such a degree that the commission of
one crime will result in the conunission of the other." Id. If the elements of the crimes
correspond, the defe dant may not be convicted of both under Ohio's merger statute, R.C.
93
§2941.25(B), unles
separate animus.
There is no
the one act formed
unclear which act fi
that Fry entered Ms.
against her. The ch
conunitting a crimi
murder/menacing b
the court finds that the defendant committed the crimes separately or with
ce, 85 Ohio St.3d at 638-639.
vidence that the appellant here had more than one intent or animus. Here,
e basis for multiple intents. Because of the indictment vagueness, it is
rmed the basis of the Aggravated Burglary element. The prosecutor argued
Hardison's appartment to kill her for filling an domestic violence complaint
ge of Aggravated Burglary included the element that Fry intended on
offense. This offense was a domestic violence/ aggravated
stalking/aggravated menacirtg/ felonious assault/ involuntary manslaughter/
murder/intimidation^of a witness. The prosecution squeezed multiple offenses out of the same
action and intent.
separate and distinctl
Aggravating
aggravated murders 1
v. Florida (1983), 46
conduct does not adc
the weighing procesE
s is fine for trial purposes, but the federal narrowing requirement requires
acts and intents for separate capital specifications to be considered.
-ircumstances in a capital case are required in order to narrow the class of
o those eligible for death. Zant v. Stephens (1983), 462 U.S. 862; Barclav
3 U.S. 939. Proving.two or more specifications out of the same course of
itionally proscribe any more severe conduct but merely loads the scales in
so that no amount of mitigation could outweigh the specifications.
94
Proposition of La* XVII:
The failureresults in th
In the prese
the professional no
legal principles of c
appeals lawyer" in
counsel not knowin
his client, the ABA
performance. For th
counsel, the ABA Gi
Supreme Court of th
o raise and preserve meritorious issues during a capital trial! denial of a defendant's right to effective assistance of counsel.
t case, counsel failed in his duty to represent the appellant in accordance with
a of capital litigators. Included in this is the duty to be familiar with the
pital litigation. There is not such thing as a "trial lawyer" as opposed to
apital litigation. As a defendant may be executed as the result of his
, understanding and implementing constitutional principles in the defense of
iuidelines require such knowledge as basic to the capital defense standard of
e purposes of the standard for the effective assistance of capital defense
lidelines are the Sixth Amendment. Its standards have been adopted by the
- United States as the standard for the perfonnance of capital defense
counsel. Rom illa v. Beard, 545 U.S. 374 (2005)
Specifically, BA Guideline 5.1(B)(2)(a) , under the subsection of Qualifications of
Counsel, require tha appointed counsel demonstrate:
substantial owledge and understanding of the relevant state, federal andinternational aw, both procedural and substantive, governing capital cases.
Complementing the above guideline is Guideline 10.8, the Duty to Assert Legal Claims.
This guidelines read^ in relevant part:
A. Counel at every stage of the case, exercising professional judgment in accordancewith ese Guidelines should:
1. Consider all legal claims potentially available; and
2. Thoroughly investigate the basis for each potential claim before reaching a
95
conclusion as to whether it should be asserted; ...
It is clear th
required by the Gui
1. Severance o
Counsel fail
counts. Had counse
level would not hav
bring out other acts
worse. Included in
domestic cases an
state to introduce ev
were also fair game
(T. 1575)
sel who decide to assert a particular legal claim should:
Present the claim as forcefully as possible, tailoring the presentation to theparticular facts and circumstances in the client's case and the applicablelaw in the particular jurisdiction; ...
tages to the client of :sel at all stages of the case should keep under consideration the possible
Asserting legal claims whose basis has only recently become known oravailable to counsel.. .
t defense counsel in this case failed to raise and preserve legal issues as
elines. This failure occurred during both phases of Fry's trial.
Counts
d to request severance on the Domestic Violence and Menacing by Stalking
done so, the prior offenses included in the indictment to raise the offense
been presented to the jury. This also opened the door for the prosecutor to
o support its theory that Hardison was in an abusive relationship which grew
e prosecution's case were expert testimony as to the cycle of violence in
or offenses. (T. 1087-90) The Menacing by Stalking count allowed the
dence of the pattern of violence, which is an element. The prior convictions
the court noted that "I will give you that the statute is pretty wide open."
In State v. Torres ( 1981), 66 Ohio St.2d 340, this Court held:
A defendantmultiple charthat his right
laiming error in the trial court's refusal to allow separate trials ofes under Criminal Rule 14 has the burden of affirmatively showingwere prejudiced; he must furnish the trial court with sufficient
96
informationdefendant'sdiscretion ir
Under Ohio
(1990), 51 Ohio St.:
charged is presented
that the jury would c
Here, there s
were specifications,
separately named of
element of the Aggr
severance or stipulal
offenses, the court v
so that it can weigh the considerations favoring joinder against theright to a fair trial, and he must demonstrate that the court abused itsrefusing to separate the charges for trial.
law, counts may be joined if they are "simple and direct." State v. Lott,
Sd 160. Under this standard where simple and direct evidence of each crime
I at trial, an accused is not prejudiced by joinder unless there is great danger
-onfuse the issues.
uch danger. There were multiple charges that were all interrelated. There
which included the same acts as the domestic violence, although called a
fense. The domestic violence may or may not have been the criminal offense
avated Burglary in Count One and/or Count Five. Counsel failed to move for
e to the prior offense. Had defense counsel moved stipulated to the prior .
ould have had no choice but to sever the related counts. The Supreme Court
of the United States has held that the introduction of prior offenses where stipulated to violates
due process. Old C'ef v.United States, 519 U.S. 172 (1997).
2. Victim-Im ct
In capital ca es, this Court has recognized a prohibition against admission of victim-
impact evidence uni ss otherwise relevant to a culpability issue. See State v. Fautenberry (1995),
72 Ohio St.3d 435, 38-439. Such evidence is statutorily prohibited in Ohio. State v. Post
(1987), 32 Ohio St. d 380. Payne v. Tennessee (1991), 501 U.S. 808 expressly left open the
issue a federal due p ocess violation for excessive use of such evidence, over and above the Ohio
prohibition.
Counsel her failed to object to numerous instances of victim-impact testimony.
97
Nikita Know testifi Jd about how murder impacted the kids. They were a mess. (Tr. 1155)
She stayed away fm the apartment for a month afterward - all the blood was too much for her.
(T. 1170) She passout when someone told her her mother had been stabbed. (T. 1154)
The prosecutor argd in closing argument how awfal it was that defendant stabbed grandma and
left the kids with h(T. 1756)
3. Other Acts idence
Counsel did bject to the introduction of numerous instances of unfairly prejudicial
evidence. See Prop sition of Law V. However, counsel failed to object to other improper
evidence, the admis ion of which violated state and federal due process protections. For
instance, Nikita Kno testified that her home was burgled in July 2005 while she was on vacation
with kids. (Tr. 1149 50) Ms. Knox said that someone stole her TVs and other valuables. She
implied that it was F.(Tr. 1162-63)
A victim-wi ess advocate allowed to talk about cycle of violence (battered women). (Tr.
1087-90) This info ation was entirely irrelevant to a finding of guilt or non-guilt.
4. Failure to Ob ect to Indictment Outweigh Element
Any fact whi h allows the maximum allowable sentence under the statute to be raised
must be included in 1 e indictment and found by the jury. By definition, these facts are elements.
Ring v. Arizona, 536 U.S. 584 (2002); Blakely v. Washineton, 542 U.S. 296 (2004). The fact
that the statutory agg avating factors present outweigh the mitigation was found by the jury.
However, this fact w s not included in the indictment. Ohio has a grand jury requirement. The
defendant has a libe interest in this state constitutional right in addition to the federal right to
have all elements fo d by the grand jury and included in the indictment. The failure to include
98
all essential elemen^s of the indictment requires a reversal of the death penalty. Counsel failed to
raise this issue withlthe trial court.
5. Prejudiced J
Counsel fail
or
would consider a lifi
death penalty in all
While, after questio
would follow the la
verdict in a murder
was deprived of one
A prospectiv
belief or opinion tha
U.S. v. Salamone 8
grant a challenge for
erroneous ruling den;
challenges that are a
(5th Cir. 1976).
d to move to strike a juror for cause. Juror Hogue could not state that he
sentence. He had indicated in his questionnaire that he believed in the
urder cases. This view was reiterated during the jury selection process.
ng and leading from the court and prosecutor, Juror Hogue did say he
he was never asked if he could actually vote for a life verdict after a guilty
e with a peremptory challenge, but by failing to remove for cause, Mr. Fry
ase. (T. 38-5 1) This juror was clearly substantially impaired. The Defense
eremptory challenge:
juror should be excused for cause whenever the juror holds a particular
will prevent or substantially impair the performance of his duties as a juror.
0 F.2d 1216, (3rd Cir. 1986). Once actual prejudice is shown, the court must
cause. U.S. v. Dalv, 716 F.2d 1499 (9th Cir. 1983). Any claim of an
ing a challenge for cause in reality reduces the number of peremptory
ailable thereby constitutes reversible error. U.S. v. Nell. 526 F. 2d 1223
In Adams v. "fexas (1980), 448 U.S. 38, the United States Supreme Court created the
granting excusal for cause in death penalty cases:
f his duties as a juror in accordance with his instructions and hisess those views would prevent or substantially impair the
ot be challenged for cause based upon his views about capital
99
oath. The S$ate may insist, however, the jurors will consider and decide the factsimpartially and conscientiously apply the law as charged by the court.
Adams. sunra, at 58^. The application of this minimum constitutional standard was confirmed
by the Court in Wai wriQht v. Witt, 469 U.S. 412 (1985)
7. Issues Addr ssed Elsewhere in This Brief
In addition, any of the issues addressed within this brief were not objected to by
counsel, which may esult in a plain error review by this Court. The arguments for those issues
are included by refe nce to the Proposition of Law raised above so as to not repeat the argument
if full. These issues 'nclude:
1. Fail e to object to Count One the faulty indictment and count five in relation to
the fa lure to list all elements of the aggravated burglary. Proposition of Law XI.
2. Fail to object to the invalid nan•owing R. C. §2929.04(A)(7) specification.
Lowe feld su ra. Proposition of Law X.
3. Failur to object to inconsistent theory indictment. Proposition of Law
4. Failur to request grand jury minutes for possible Bradv, snora, violation.
Propo ition of Law XIII.
5. Failur to object to chad/lack of unanimity issues . Proposition of Law XIV.
6. Failur to object to pre-hearing preparation of R. C. §2929.03(F) opinion.
Propo ition of Law III.
7. Failur to request for merger of statutory aggravating factors, thus permitting the
jury d judge to consider invalid aggravator in weighing process in violation of
Zant v Ste hens, su ra. Proposition of Law XVI.
100
The United tates Supreme Court set forth the minimum standard for effective assistance
in Strickland v. Was in ton (1984), 466 U.S. 68. A two-step test was announced. First, the
defendant must sho that counsel's performance was deficient. Second, the defendant must
show that the defici nt performance prejudiced the defense. This latter test requires that
counsel's errors wer so serious as to deprive the defendant of a fair trial.
In all of the bove instances, their appears no reasonable trial strategy for not objecting to
or moving to preclu e or dismiss. This is especially damaging in a capital trial, where there
exists a great danger of a"carry-over" effect. The instances of the unfavorable evidence might
be considered in the entencing weighing process. The failure to object to the above errors were
not consistent with e mandates of the ABA Guidelines. The failure to do so were outside of the
professional norm fc capital litigators and were not based on any reasonable strategy. Counsel's
failures violated the ippellant's rights under the Fifth, Sixth, Eighth and Fourteenth Amendments
of the United States onstitution.
101
A criminal efendant possesses the constitutional right to counsel of hischoice. Wh re an African-American defendant requests at his arraignmentfor a death enalty charge that at least one of his counsel be of his sameheritage, th trial court must grant the request if such qualified counsel isavailable.
qualified defense co
ent, the appellant Fry was appointed one of his statutory right to two
sel. The appointed counsel, Lawrence Whitney, appeared at the hearing.
Second counsel was Ito be appointed at a later time.
At that time,
THE COUR
THE DEFE
THE COUR
Thesecond attorney
In U.S. v. Go
Supreme Court addr
have counsel of one
the court and basical
norm. This right is s
is no constitutional r
The right to s
Sixth Amendment's
of the constitutional
Andersen v. Treat, 1
e arraigning officer asked Mr. Fry:
Any questions, Mr. Fry?
DANT: Yeah. You don't have any black lawyers?
Well, you can take that up with Judge Spicer.
as also white.
zales-Lopez, _ U.S. -, 126 S.Ct 2557 (2006), the United States
ssed the difference between the right to effective counsel and the right to
choice. The right to effective counsel has been addressed many times by
y comes down to whether counsel performed in line with the professional
bject to a prejudice element. If the evidence of guilt is overwhelming, there
quirement to grant a new trial.
lect counsel of one's choice, by contrast, has never been derived from the
urpose of ensuring a fair trial. n3 It has been regarded as the root meaning
uarantee. See Wheat v. United States, 486 U.S. 153, at 159, (1988);
2 U.S. 24 ( 1898). Powell v. Alabama, 287 U.S. 45, 53 (1932).
102
Because of e difference, where one is denied his or her choice of attorneys, there is no
prejudice determina#on. The denial requires a new trial.
Where the ri ht to be assisted by counsel of one's choice is wrongly denied,therefore, it unnecessary to conduct an ineffectiveness or prejudice inquiry toestablish a S xth Amendment violation. Deprivation of the right is "complete"when the de ndant is erroneously prevented from being represented by the lawyerhe wants, re ardless of the quality of the representation he received. To argueotherwise is o confuse the right to counsel of choice--which is the right to aparticular la er regardless of comparative effectiveness--with the right toeffective co sel--which imposes a baseline requirement of competence onwhatever la er is chosen or appointed.
Lonez-Gonzales at 2 563.
The Court ac owledged that in the interest of a fair trial, the appointing court had some
discretion. In Whea v. United States, the Supreme Court formulated the right to counsel of
choice and discusse some of the limitations upon it. The Court took note of the overarching
purpose of fair trial i holding that the trial court has discretioin to disallow a first choice of
counsel that would c eate serious risk of conflict of interest. Id., at 159. However, the Lopez-
Gonzales Court note 1 significantly that:
It is one thinthe need for fits denial ren
to conclude that the right to counsel of choice may be limited byir trial, but quite another to say that the right does not exist unlessers the trial unfair.
Lopez-Gonazalez, p. I2563
This latter de
African-American aI
as to why the requesi
ermination is germane to the issue here. Upon Mr. Fry's request for an
pointment, the trial court ducked the issue. No inquiry was made of Mr. Fry
was made. There was no determination made that Rule 20 qualified
African-Americans were no or could not be made available. No one will argue that competent,
well-qualified black attorneys are not available in Summit or nearby counties.
103
Where the right to b assisted by counsel of one's choice is wrongly denied, it is unnecessary to
conduct an ineffecti eness or prejudice inquiry to establish a Sixth Amendment violation.
Deprivation of the ri ht is "complete" when the defendant is erroneously prevented from being
represented by the 1 wyer he wants, regardless of the quality of the representation he received.
To argue otherwise is to confuse the right to counsel of choice--which is the right to a particular
lawyer regardless of comparative effectiveness--with the right to effective counsel--which
imposes a baseline r quirement of competence on whatever lawyer is chosen or appointed.
The Court in Gonzales-Lopez did not directly address the issue of whether an indigent
has the right to appo nted counsel of choice. However, the broad language of the decision, in
addition to the racial make-up of the participants, would seem to fit under the umbrella of the
opinion. Because of Ohio Supreme Court Rule 20 qualification demands, the state can control
the quality of counse , yet permit defendants a choice of counsel when they are literally fighting
for their lives.
104
Proposition of Law
The death pin in the triof the death
XIX :
nalty may not be sustained where the cumulative errors that occurring1 deprived the defendant of a fair consideration of the appropriatenesspenalty.
The combina ion of errors by the trial court, the prosecution and the ineffectiveness of the
defense counsel dep 'ved the appellant of a fair trial. The errors, if not individually, combined to
cause the trial to be onstitutionally infirm. State v. DeMarco (1987), 31 Ohio St.3d 191.
Errors of state law w ich deny a petitioner's Fourteenth Amendment right of a fundamentally fair
trial will support ha as corpus relief. Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir. 1988).
Federal courts usuall assess the merits of state trial errors asserted in a habeas petition that they
may properly hear s arately. Individual errors at trial held by a federal court not to deprive a
petitioner of due pro ess may, when aggregated, reveal a trial setting in which cumulative errors
do deprive the pefiti ner of due process. Walker v. Enele, 703 F.2d 959, 968 (6' Cir.), cert.
denied, 464 U.S. 951, and cert. denied 464 U.S. 962 (1983).
These errors, as addressed in the Proposition of Laws in this brief, combined to violate
the Fifth, Sixth, Eig th and Fourteenth Amendments to the United States Constitution.
105
The death p
The Eighth
Constitution prohibi
protections are appli
Califomia, 370 U.S
nalty is unconstitutional as presently administered in Ohio.
mendment to the United States Constitution and Article I, § 9 of the Ohio
the infliction of cruel and unusual punishment. The Eighth Amendment's
able to the states through the Fourteenth Amendment. Robinson v.
60 (1962). Punishment that is "excessive" constitutes cruel and unusual
punishment. Coker J. Geor2ia. 433 U.S. 584 (1977). The underlying principle of governmental
ty is the Court's guideline to determine whether this statute is
constitutional. See gurman v. Georgia, 408 U.S. 238 (1972) (Brennan, J., concurring); Rhodes v.
37, 361 ( 1981); Trop v. Dulles, 356 U.S. 86 (1958). The Ohio scheme
offends this bedrock principle in the following ways:
A. Arbitrary an
The Fourteen
similarly situated per
Furman, 408 U.S. at
Equal Protection gu
penalty also offends
Ohio's capital
discriminatory mann
indictment discretio
death penalty statute
a death sentence and
unequal punishment
Amendment's guarantee of equal protection requires similar treatment of
ons. This right extends to the protection against crael and unusual punishment.
249 (Douglas, J., concurring). A death penalty imposed in violation of the
antee is a cruel and unusual punishment. See id. Any arbitrary use of the death
he Eighth Amendment. Id.
unishment scheme allows the death penalty to be imposed in an arbitrary and
r in violation of Furman and its progeny. Prosecutors' virtually uncontrolled
allows arbitrary and discriminatory imposition of the death penalty. Mandatory
were deemed fatally flawed because they lacked standards for imposition of
ere therefore removed fromjudicial review. Woodson v. North Carolina, 428
106
U.S. 280 (1976).
Ohio's syste
white victims are m
twenty percent of 0
(See Death Penalty
2000). While fe
African-Americans
Ohio's statisti
found victim's race
in charging and try
Disparities," U.S.
osecutors' uncontrolled discretion violates this requirement.
imposes death in a racially discriminatory manner. Blacks and those who kill
ch more likely to get the death penalty. While African-Americans are less than
o's population, about half of Ohio's death row inmates are African-American.
tatistics, maintained by the Office of the Ohio Public Defender, as of Jan. 24,
aucasians are sentenced to death for killing African-Americans, over thirty
t on Ohio's death row for killing a Caucasian.
al disparity is consistent with national findings. The General Accounting Office
uential at all stages, with stronger evidence involving prosecutorial discretion
ng cases. "Death Penalty Sentencing: Research Indicates Pattem of Racial
eneral Accounting Office, Report to Senate and House Committees on the
Ohio courts ha
Assembly establishe
Supreme Court to
§2953.21(A)(2), no
and does not apply
against race discrim
Due process p
not evaluated the implications of these racial disparities. While the General
a disparity appeals practice in post-conviction that may encourage the Ohio
adopt a rule requiring tracking the offender's race, Ohio Rev. Code
e has been adopted. Further, this practice does not track the victim's race
crimes committed before July 1, 1996. In short, Ohio law fails to assure
ation playing a role in capital sentencing.
hibits the taking of life unless the state can show a legitimate and compelling
state interest. Combnonwealth v. O'Neal II, 339 N.E.2d 676, 678 (Mass. 1975) (Tauro, C.J.,
concurring); Utah v. Pierre, 572 P.2d 1338 (Utah 1977) (Maughan, J., concurring and dissenting).
Moreover, where funoamental rights are involved personal liberties cannot be broadly stifled "when
107
the end can be mor narrowly achieved." Shelton v. Tucker 364 U.S. 479 (1960). The United
States Supreme Co has recognized that the fundamental right to "life" deserves the highest
protection possible der the Fourteenth Amendment's protection of "life, liberty and property."
Ohio Adult Parole uthori v. Woodard, 523 U.S. 272 (1998) (five Justices recognized a distinct
"life" interest protec ed by the Due Process Clause in all stages of a capital case, above and beyond
protected liberty an property interests). Death is different; for that reason more process is due,
not less. See Lock v. Ohio, 438 U.S. 586 (1978); Woodson v. North Carolina, 428 U.S. 280
(1976). To imperil is protected, fundamental life interest, the State must show that it is the "least
restrictive means" t a"compelling governmental end." O Neal, 339 N.E.2d at 678.
Despite the ost exhaustive research by noted experts in the field, there is no convincing
evidence that the d ath penalty is a deterrent superior to lesser punishment. "In fact, the most
convincing studies oint in the opposite direction." Id. at 682. Studies in Ohio, more particularly,
have similarly failed to show any deterrent effect by imposition of the death penalty. Over twenty
years ago, a study sp ing fifty (50) years of executions in Ohio found no evidence that executions
have any discernibi negative effect on homicide rates. Ohio Legisl. Serv. Comm'n.. Capital
Punishment (1961). See also Bailey, The Deterrent Effect of the Death Penalty for Murder in Ohio.
A Time-Series Anal sis, 28 Cleve. St. L. Rev. 51, 68, 70 (1979). The Supreme Court of Ohio has
not addressed the iss e of lack of evidence supporting deterrence in its previous decisions upholding
the death penalty.
The death pe alty is neither the least restrictive nor an effective means of deterrence. Both
isolation ofthe offen er and retribution can be effectively served by less restrictive means. Society's
interests do notjusti the death penalty.
108
B. Unreliable clontencing procedures
The Due Pro ess and Equal Protection Clauses prohibit arbitrary and capricious procedures
in the State's appli ation of capital punishment. Gregg v. Georp-ia; 428 U.S. 153, 188, 193-95
(1976); Furman 4 8 U.S. at 255, 274. Ohio's scheme does not meet those requirements. The
statute does not req ire the State to prove the absence of any mitigating factors or that death is the
only appropriate pe alty.
The statutory cheme is unconstitutionally vague which leads to the arbitrary imposition of the
death penalty. The 1 guage "that the aggravating circumstances ... outweigh the mitigating factors"
invites arbitrary and apriciousjury decisions. "Outweigh" preserves reliance on the lesser standard
of proof by a prepon erance of the evidence. The statute requires only that the sentencing body be
convinced beyond a reasonable doubt that the aggravating circumstances were marginally greater
than the mitigating ctors. This creates an unacceptable risk of arbitrary or capricious sentencing.
Additionally the mitigating circumstances are vague. The jury must be given "specific and
detailed guidance" d be provided with "clear and objective standards" for their sentencing
discretion to be ade uately channeled. Grege; Godfrey v. Georgia, 446 U.S. 420 (1980).
Ohio courts ontinually hold that the weighing process and the weight to be assigned to a
given factor is withi the individual decision-maker's discretion. State v. Fox, 69 Ohio St. 3d 183,
193, 631 N.E.2d 124 132 (1994). Giving so much discretion to juries inevitably leads to arbitrary
and capricious judg ents.
Empirical evi ence is developing in Ohio and around the country that, under commonly used
penalty phase jury in tructions, juries do not understand their responsibilities and apply inaccurate
standards for decisio . See Cho, Capital Confusion: The Effect of Jury Instructions on the Decision
109
To Im^ose Death, 5 J. Crim. L. & Criminology 532, 549-557 (1994), and findings of Zeisel
discussed in Free v. Peters, 12 F.3d 700 (7th Cir. 1993). This confusion violates the Federal and
State Constitutions. Because of these deficiencies, Ohio's statutory scheme does not meet the
requirements of F an and its progeny.
C. Induced ine ective assistance of counsel and denial of an impartial jury
Ohio's capit statutory scheme provides for a sentencing recommendation by the same jury
which determines th facts at trial if Defendant is found guilty. This procedure violates Defendant's
rights to effective as istance of counsel and to a fair trial before an impartial jury as guaranteed by
the State and Feder Constitutions.
Ohio's bi ated capital trial process with the same jury violates Defendant's right to
effective assistance f counsel as guaranteed under the Sixth and Fourteenth Amendments to the
United States Const tution; McMann v. Richardson, 397 U.S. 759, 771, n.14 (1970); Powell v.
Alabama, 287 U.S. 4 47 (1932); Ohio Const. art. I§§ 10 & 16; State v. Hester, 45 Ohio St. 2d 71,
341 N.E.2d 304 (19 6).
First, under e operation of the current statute, if counsel argues to the jury a defense which
loses at the guilt ph e of the trial, in effect he is forced to simultaneously destroy Defendant's
credibility prior to t e start of the trial's sentencing phase. By invoking the defendant's right to
strenuously argue fo his innocence in the first phase, a loss for the defense in the first phase means
that counsel will hav significantly reduced the credibility desperately needed to successfully argue
for a life sentence.
The legislatu e should have eliminated this constitutional dilemma by providing for two
separate juries, the rst for determining guilt and the second for determining punishment. It is
110
respectfully sugges ed that at the second trial the prosecuting attorney would be allowed to reiterate
the specific evidenc of aggravating circumstances. This proposed order oftrial would eliminate the
impairment of the r ght to have a defense presented with the effective assistance of counsel. The
State essentially ha "prevented (counsel) from assisting the accused during a critical stage of the
proceeding." Unite States v. Cronic, 466 U.S. 648, 659, n.25 (1984). This creates constitutional
error without any s
The State's
that this should s
by the Attomey Ge
introduced early 19
when a capital defe
claim that this two-j
have on the fairness
Under Ohio'
may be put in the h
the determination re
U.S. 625, 638 (1980
of Defendant's right
owing of prejudice necessary. Id.
laim that it has an interest in having a single jury for both phases of the trial and
ount the Defendant's right to a fair and impartial trial phase jury is also belied
eral's recent efforts in the Ohio legislature (through H.B. 585 and S.B. 258„
6) to require that a second jury be selected for purposes of resentencing trials
ant's death sentence is overturned on appeal. The Attorney General's present
io court has yet considered the impact that the State's contradictory positions
practice would be workable and inexpensive flies in the face of the State's
t just such a two jury practice at the initial trial. The State cannot have it both
criminal justice system must not force defendants into trial before a less than
f the present capital scheme.
death penalty statutory scheme, an intolerable risk exists that a defendant's life
ds of a hostile venire, which in effect creates uncertainty in the reliability of
ched. Such a risk cannot be tolerated in a capital case. Beck v. Alabama. 447
Therefore, the statute must be struck down as an unconstitutional violation
o an impartial jury under the State and Federal constitutions.
D. Lack of indi} idualized sentencing
111
The Ohio stat
in the trial phase oft
schemes that separat
Those schemes pro
eligible for the dea
U.S. 939 (1983). O
The jury mus
defendant. Requiri
effectively prohibits
Furman cases. See
accomplished witho
E. Defendant's
The Ohio sch
capital defendants w
or no contest benefi
justice." Ohio R.
tes are unconstitutional because they require proof of aggravating circumstances
e bifurcated proceeding. The Supreme Court ofthe United States has approved
the consideration of aggravating circumstances from the determination ofguilt.
ide an individualized determination and narrow the category of defendants
penalty. See Zant v. Stephens, 462 U.S. 862 (1983); Barclay v. Florida, 463
io's statutory scheme cannot provide for those constitutional safeguards.
be free to determine whether death is the appropriate punishment for a
g proof of the aggravating circumstances simultaneously with proof of guilt
a sufficiently individualized determination in sentencing as required by post-
Woodson, 428 U.S. at 961. This is especially prejudicial because this is
t consideration of any mitigating factors.
right to a jury is burdened
me is unconstitutional because it imposes an impermissible risk of death on
o choose to exercise their right to a jury trial. A defendant who pleads guilty
om a trial judge's discretion to dismiss the specifications "in the interest of
im. P. 11(C)(3). Accordingly, the capital indictment may be dismissed
regardless of mitigat ng circumstances. There is no corresponding provision for a capital defendant
who elects to procee to trial before a jury.
Justice Blac un found this discrepancy to be constitutional error. Lockett v. Ohio, 438 U.S.
586, 617 ( 1978) (Bl ckmun, J., concurring). This disparity violated United States v. Jackson, 390
U.S. 570 ( 1968), anneedlessly burdened the defendant's exercise of his right to a trial by jury.
Since the Supreme C urt's decision in Lockett, this infirmity has not been cured and Ohio's statute
112
remains unconstitut onal.
F. Mandatory submission of reports and evaluations
Ohio's capital statutes are unconstitutional because they require submission ofthe pre-sentence
investigation repo and the mental evaluation to the jury or judge once requested by a capital
defendant. Ohio Re . Code §2929.03(D)(1). This mandatory submission prevents defense counsel
from giving effecti assistance and prevents the defendant from effectively presenting his case in
mitigation.
G. The definitireliability c
"Any other fa
to death" may be in
The court's charge
permit the sentence
The Eighth
rationally guided by
that make a defend
definition eviscerate
invites the sentence
"reasonable likeliho
aggravator, rather th
U.S. 222, 231-235 (
The (B)(7)
n of mitigating factors in Ohio Rev. Code §2929.04(B)(7) violates themponent of the Eighth Amendment
ors that are relevant to the issue of whether the offender should be sentenced
duced as mitigation under Ohio Rev. Code §2929.04(B)(7) ( emphasis added).
d the definition in Ohio Rev. Code §2929.04(B)(7) are unconstitutional. Both
to convert (B)(7) mitigation into reasons for imposing death.
endment requires that the class of death eligible offenders be narrowly and
tate law. McCleskey v. Kemp, 481 U.S. 279, 305 (1987). In Ohio, the factors
death-eligible are detailed in Ohio Rev. Code §2929.04(A). The (B)(7)
the narrowing achieved by Ohio Rev. Code §2929.04(A) because it literally
to consider any factor relevant to imposing death. That language creates a
" that the sentencer will view proffered (B)(7) mitigation as a nonstatutory
evidence that weighs against a death sentence. See Stringer v. Black, 503
992); Bovde v. California, 494 U.S. 370, 380-81 (1990).
efinition also precludes the jury from giving mitigating evidence its full
113
consideration and
supporting a life se
wording frustrates
mitigating evidence
be construed as an a
Amendment, each
mitigating effect to
ffect. The intent was to allow the jury to consider all relevant evidence
nce. See Lockett v. Ohio 438 U.S. 586; see also O.R.C §2929.04(C). Poor
e General Assembly's intent. The definition shifts the focus of the (B)(7)
o reasons to impose a death sentence. Because (B)(7) mitigating evidence can
gravating factor, it is stripped of its full mitigating effect. To satisfy the Eighth
or in the capital sentencing scheme must be able to give consideration and fall
1 relevant mitigating evidence offered by the defendant. Penrv v. Lvnaueh. 492
U.S. 302; Eddinas v.Oklahoma, 455 U.S. 104; Locke 438 U.S. 586. See Graham v. Collins, 506
U.S. 461, 510 (1993) (Souter, J. dissenting).
H. Ohio Rev. Clode §2929.04(A)(7) is constitutionally invalid when used to aggravateOhio Rev. Cbde §2903.01(B) aggravated murder
"[T]o avoid the] constitutional flaw of [vagueness and over breadth under the Eighth
Amendment], an ag ravating circumstance must genuinely narrow the class of persons eligible for
the deathpenalty an d must reasonably justify the imposition of a more severe sentence of a defendant
as compared to othe s found guilty of (aggravated) murder." Zant v. Stephens, 462 U.S. 862, 877
(1983). Ohio's statutc scheme fails to meet this constitutional requirement because Ohio Rev. Code
§2929.04(A)(7) fails to genuinely narrow the class of individuals eligible for the death penalty.
Ohio Rev. C de §2903.01(B) defines the category of felony-murderers. If any factor listed
in Ohio Rev. Code §2 29.04(A) is specified in the indictment and proved beyond a reasonable doubt
the defendant becom s eligible for the death penalty. Ohio Rev. Code §§2929.02(A) and 2929.03.
The scheme i unconstitutional because the Ohio Rev. Code §2929.04(A)(7) aggravating
circumstance merely repeats, as an aggravating circumstance, factors that distinguish aggravated
114
felony-murderfrom
as alleged, which a
§2929.04(A)(7) doe
murderers. But, the
that maximizes the
without substantial j
at 877.
As comparec
Each Ohio Rev. Coc
§2903.01(A), adds ^
should be permitted
alleged to have kille
not a single addition
The killer wl
nonsensical because
less. From a retril
murder. Ohio Rev. Code §2929.04(A)(7) repeats the definition offelony-murder
qtomatically qualifies the defendant for the death penalty. Ohio Rev. Code
s not reasonably justify the imposition of a more severe sentence on felony-
prosecuting attorney and the sentencing body are given unbounded discretion
risk of arbitrary and capricious action and deprivation of a defendant's life
ustification. The aggravating circumstance must therefore fail. Zant, 462 U.S.
to other aggravated murderers, the felony-murderer is treated more severely.
e §2929.04(A) circumstance, when used in connection with Ohio Rev. Code
n additional measure of culpability to an offender such that society arguably
o punish him more severely with death. But the aggravated murder defendant
I during the course of a felony is automatically eligible for the death penalty -
il proof of fact is necessary.
o kills with prior calculation and design is treated less severely, which is also
iis blameworthiness or moral guilt is higher, and the argued ability to deter him
utive stance, this is the most culpable of mental states. Comment, The
Constitutionalit TLof IImposing the Death Penalty for Felonv Murder, 15 Hous. L. Rev. 356, 375
(1978).
Felony-mur r also fails to reasonablyjustify the death sentence because the Supreme Court
of Ohio has interpre ed Ohio Rev. Code §2929.04(A)(7) as not requiring that intent to commit a
felony precede the urder. State v. Williams, 74 Ohio St. 3d 569, 660 N.E.2d 724, syl. 2 (1996).
The asserted state in erest in treating felony-murder as deserving of greater punishment is to deter
115
the commission of f
killing result from a
Penal Code. Wither
Supreme Court has c
imposed on such ind
462 U.S. 862 (1983:
previous cases, thus
slonies in which individuals may die. Generally courts have required that the
i act done in furtherance of the felonious purpose. Id., referencing the Model
it such a limitation, no state interest justifies a stiffer punishment. The Ohio
iscarded the only arguable reasonable justification for the death sentence to be
ividuals, a position that engenders constitutional violations. Zant v. Stephens,
i. Further, the Supreme Court of Ohio's current position is inconsistent with
creating the likelihood of arbitrary and inconsistent applications of the death
penalty. Seee.g., S ate v. Ro"as, 64 Ohio St. 3d 131, 592 N.E.2d 1376 (1992).
Equal protec ion of the law requires that legislative classifications be supported by, at least,
a reasonable relation
The State has arbitrai
automatically. This
brutal, cold-blooded
automatically eligibl,
distinction and its ap
1. Ohio Rev. C
aggravating circums
to be weighed in fav
mitigating factors
Ohio's death penalt3
unfettered discretion
ship to legitimate State interests. Skinner v. Oklahoma, 316 U.S. 535 (1941).
^ily selected one class of murderers who may be subjected to the death penalty
statutory scheme is inconsistent with the purported State interests. The most
and premeditated murderers do not fall within the types of murder that are
- for the death penalty. There is no rational basis or any State interest for this
plication is arbitrary and capricious.
ode §§2929.03(D)(1) and 2929.04 are unconstitutionally vague
ode §2929.03(D)(1)'s reference to "the nature and circumstances of the
ance" incorporates the nature and circumstances of the offense into the factors
r of death. The nature and circumstances of an offense are, however, statutory
der Ohio Rev. Code §2929.04(B). Ohio Rev. Code §2929.03(D)(1) makes
weighing scheme unconstitutionally vague because it gives the sentencer
to weigh a statutory mitigating factor as an aggravator.
116
To avoid ar itrariness in capital sentencing, states must limit and channel the sentencer's
discretion with cle and specific guidance. Lewis v. Jeffers, 497 U.S. 764, 774 (1990); Mavnard
v. Cartwrieht, 486 J .S. 356, 362 (1988). A vague aggravating circumstance fails to give that
guidance. Walton v Arizona, 497 U.S. 639, 653 (1990); Godfrev, 446 U.S. at 428. Moreover, a
vague aggravating c cumstance is unconstitutional whether it is an eligibility or a selection factor.
Tuilae a v. Califo ' 512 U.S. 967 (1994). The aggravating circumstances in Ohio Rev. Code
§2929.04(A)(1)-(8) e both.
Ohio Rev. C de §2929.04(B) tells the sentencer that the nature and circumstances of the
offense are selection factors in mitigation. Moreover, because the nature and circumstances of the
offense are listed on
factors in mitigation
(1996). However, th
Rev. Code §2929.03
the aggravating circi
ly in Ohio Rev: Code §2929.04(B), they must be weighed only as selection
See State v. Wo en@ stahl, 75 Ohio St. 3d 344, 356, 662 N.E.2d 311, 321-22
clarity and specificity of Ohio Rev. Code §2929.04(B) is eviscerated by Ohio
(D)(1); selection factors that are strictly mitigating become part and parcel of
qnstance.
Despite widel latitude, Ohio has carefully circumscribed its selection factors into mutually
exclusive categories.
662 N.E.2d at 321-2
because it incorpo
circumstances. The
§2929.03(D)(1), the'
its weighing or sel
therefore makes Ohi
See Ohio Rev. Code §2929.04(A) and (B); Woeenstahl, 75 Ohio St. 3d at 356,
. Ohio Rev. Code §2929.03(D)(1) makes Ohio Rev. Code §2929.04(B) vague
ates the nature and circumstances of an offense into the aggravating
entencer cannot reconcile this incorporation. As a result of Ohio Rev. Code
nature and circumstances" of any offense become "too vague" to guide the jury
ction process.. See Walton, 497 U.S. at 654. Ohio Rev. Code §2929.03(D)(1)
Rev. Code §2929.04(B) unconstitutionally arbitrary.
117
Ohio Rev. ode §2929.03(D)(1) is also unconstitutional on its face because it makes the
selection factors in ggravation in Ohio Rev. Code §2929.04(A)(l)-(8) "too vague." See Walton,
497 U.S. at 654. 0 o Rev. Code §2929.04(A)(1)-(8) gives clear guidance as to the selection factors
that may be weighed against the defendant's mitigation. However, Ohio Rev. Code §2929.03(D)(1)
eviscerates the narro
circumstance," Ohi
impose the death pe
impose death base
circumstances of th
discretion provided
J. Inadequate
Ohio Revised
appeals and to the S
information receive
Rev. Code §2929.02
necessary to make
review.
Adequate appe
ing achieved. By referring to the "nature and circumstances of the aggravating
Rev. Code §2929.03(D)(1) gives the sentencer "open-ended discretion" to
alty. See Mavnard, 486 U.S. at 362. That reference allows the sentencer to
on (A)(l)-(8) plus any other fact in evidence arising from the nature and
offense that the sentencer considers aggravating. This eliminates the guided
y Ohio Rev. Code §2929.04(A). See Strineer, 503 U.S. at 232,
roportionality and appropriateness review
ode §§2929.021 and 2929.03 require data be reported to the courts of
preme Court of Ohio. There are substantial doubts as to the adequacy of the
after guilty pleas to lesser offenses or after charge reductions at trial. Ohio
requires only minimal information on these cases. Additional data is
adequate comparison in these cases. This prohibits adequate appellate
late review is a precondition to the constitutionality of a state death penalty
system. Zant, 462 U S. at 879; Pulley v. Harris. 465 U.S. 37 (1984). The standard for review is
one of careful scruti y. Zent, 462 U.S. at 884-85. Review must be based on a comparison of
similar cases and ulti ately must focus on the character of the individual and the circumstances
of the crime. Id.
118
Ohio's statut s' failure to require the jury or three-judge panel recommending life
imprisonment to id ntify the mitigating factors undercuts adequate appellate review. Without
this information, no significant comparison of cases is possible. Without a significant
comparison of case , there can be no meaningful appellate review.
The comparis n method is also constitutionally flawed. Review of cases where the death
penalty was impose 1 satisfies the proportionality review required by Ohio Rev. Code
§2929.05(A). State v. Steffen, 31 Ohio St. 3d 111, 509 N.E.2d 383, syl. 1(1987). However, this
prevents a fair prop rtionality review. There is no meaningful manner to distinguish capital
defendants who des rve the death penalty from those who do not.
In Supreme ourt of Ohio decisions, only other death sentences will be considered. State
v. Zuem, 32 Ohio S. 3d 56, 64-65, 512 N.E.2d 585, 593-594 (1987); State v. Steffen, 31 Ohio
St. 3d 111, 509 N.E. d 383 (1987); State v. Stumnf, 32 Ohio St. 3d 95, 512 N.E.2d 598 (1987).
The Court now disa ows any ability to assure equal treatment of all capital defendants. Zuem.
32 Ohio St. 3d at 64 512 N.E.2d at 593. While it acknowledges "[t]he purpose of a
proportionality revi is therefore to insure that the death penalty is not imposed in a random
freakish, arbitrary o capricious manner," the Court's present review provides no means of
achieving this. Id.
The Court cl 'ms "Ohio's system well documents why particular murderers receive the
death sentence, whic
594. However, that
dispositions, is nevei
consider life sentenc
t has removed the vestiges of arbitrariness." Id. at 64, 65, 512 N.E.2d at
ocumentation, provided by collection of life sentence opinions and
consulted by the Ohio Supreme Court. The Ohio Supreme Court refuses to
cases, even when they are presented to them by the capital
119
defendant/appellan
simply states it nee
In fact, the
review of any issue
(1988), the Court d
appellant. The Co
decided by the Co
dispose of the issue
. See St^f, 32 Ohio St. 3d at 106-107, 512 N.E.2d at 609-610. The Court
not consider these, then does not. Id.
upreme Court of Ohio has proven itself unwilling to undertake meaningful
in capital cases. In State v. Poindexter, 36 Ohio St. 3d 1, 520 N.E.2d 568
termined that it need not give any consideration to errors raised by a capital
held that when issues of law in capital cases have been considered and
and are raised again in a subsequent capital case, the Court will summarily
in all following cases.
In State v. S isak, 36 Ohio St. 3d 80, 521 N.E.2d 800 (1988), the Court demonstrated the
extent to which it a
containing sixty-fo
pages, the court re
opinion. Instead th
on appeal. Id. at 82
In Ohio, the
no review at all und
plies the Poindexter ban on review. Upon being presented with a brief
(64) propositions of law and exceeding four hundred ninety-four (494)
sed to review practically all of these errors and filed a four and one-half page
court chastised appellant for vigorously exercising his rights to raise error
521 N.E.2d at 802.
ight to meaningful appellate review has been reduced to the right of having
t Ohio "review" standards, capital appellants may raise errors, but by doing
gnized by Zant, Pullev and Barclav, is flagrantly violated by the Ohio
r Poindexter and Spisak. The constitutional requirement of meaningful
so they open themse ves to criticism for seeking review. The only "guarantee" under present
review standards is 1 at Ohio courts can ignore the appellate errors raised. This situation is
constitutionally into erable.
The Ohio Su reme Court's statement that the system "well documents" why a death
120
sentence is impose
documents reflectin
in the clerk's office.
them represents a d
they refuse to consi
The defend
sentencing does not
require that every p
United States recen
could not be more wrong. So far as one can discern, all these collected
why many persons received life sentences are laying in totally ignored files
The Supreme Court of Ohio has no notion of whether the death case before
parture from a common practice of life sentencing on the same facts since
er their "collected documents"
t agrees that the appellate courts' responsibility to assure against arbitrary
equire absolute equal treatment among capital defendants and does not
ssibility of arbitrariness be obliterated. But, as the Supreme Court of the
y stated, the Eighth Amendment is offended if there is "a significant risk of
arbitrary sentencingj' that is unchecked. McCleskey v. Kemp, 481 U.S. 279 (1987). In
McCleskey, the Co
reviewing the propo
among the class of e
actively compares Ii
The Court's a
§2929.05(A) require
each case. The statu
circumstances outw^
Court has not follow
does not "rationally
sanction and those fi
The cursory ap
required "rationality in the system" and approved Georgia's practice of
onality of sentences as achieving "a reasonable level of proportionality"
gible defendants. Id. 481 U.S. at 298. Georgia reviews life sentences, and
e and death sentences. Zant, 462 U.S. at 879.
propriateness analysis is also constitutionally infirm. Ohio Rev. Code
appellate courts to determine the appropriateness of the death penalty in
e directs affirmance only where the court is persuaded that the aggravating
igh the mitigating factors and that death is the appropriate sentence. Id. The
d these dictates. The appropriateness review conducted is very cursory. It
stinguish between those individuals for whom death is an appropriate
r whom it is not." Spaziano v. Florida, 468 U.S. 447, 460 (1984).
opriateness review also violates the capital defendant's due process rights
121
as guaranteed by th Fifth and Fourteenth Amendments to the United States Constitution. The
General Assembly rovided capital appellants with the statutory right of proportionality review.
When a state acts w th significant discretion, it must act in accordance with the Due Process
Clause. Evitts v. L ce 469 U.S. 387, 401 (1985). The review currently used violates this
constitutional mand te. An insufficient proportionality review violates due process, liberty
interest in Ohio Rev Code §2929.05.
K. Mandatory eath penalty and failure to require appropriateness analysis
The Ohio de th penalty statutory scheme precludes a mercy option, either in the absence
of mitigation or wh the aggravating circumstances "outweigh" the mitigating factors. The
statutes in those sit tions mandate that death shall be imposed. Ohio Rev. Code §§2929.03,
2929.04. The sentei cing authority is impennissibly limited in its ability to return a life verdict
by this provision.
In Grese, th United States Supreme Court stated, "nothing" in any of our cases suggests
that the decision to ford an individual defendant mercy violates the Constitution. 428 U.S. at
199. Greee held onl that, "in order to minimize the risk that the death penalty would be
imposed on a caprici usly selected group of offenders, the decision to impose it had to be guided
by standards so that e sentencing authority would focus on the particularized circumstances of
the crime and the de endant." Id. Gregg requires the State to establish, according to
constitutionally suffi ient criteria of aggravation and constitutionally mandated procedures, that
capital punishment i appropriate for the defendant. Nothing requires the State to execute
defendants for who such a finding is made. Indeed the Georgia statute, approved in Gre¢e as
being consistent wi Furmanpermits the jury to make a binding recommendation of mercy even
122
though the jury did
S.E.2d 37 (Ga. 197
Fifth and Eleventh
instructions when t
return a life sentenc
Stvnchcombe, 581
iot find any mitigating circumstances in the case. Fleming v. _Geor^ia, 240
); Hayes v. Geor¢ia, 282 S.E.2d 208 (Ga. 1981). Subsequent to Locke the
ircuits repeatedly reviewed and remanded cases for error in the jury
e trial court failed to clearly instruct the jury that they had the option to
even if the aggravating circumstances outweighed mitigation. Chenault v.
.2d 444 (5th Cir. 1978); S ivey v. Zant, 661 F.2d 464 (5th Cir. 1981);
Goodwin v. Balkco , 684 F.2d 794 (11th Cir. 1981); Westbrooke v. Zant, 704 F.2d 1487 (11th
Cir. 1983); Tucker . Zant 724 F.2d 882 (11th Cir. 1984); Grav v. Lucas, 677 F.2d 1086 (5th
Cir. 1982); Pre'ean. Blackburn, 570 F. Supp. 985 (D. La. 1983).
Capital sent ncing that is constitutionally individualized requires a mercy option. An
individualized sente cing decision requires that the sentencer possess the power to choose mercy
and to determine. th death is not the appropriate penalty for this defendant for this crime. In
Barclay v. Florida 3 U.S. at 950, the Court stated that the jury is free to "determine whether
death is the appropri te punishment."
Absent the ercy option, the Defendant faces a death verdict resulting from Lockett-type
statute, i.e., a statute that mandated a death verdict in the absence of one of three specific
mitigating factors. nder current Ohio law, the sentencer lacks the option of finding a life
sentence appropriate in the face of a statute which requires that when aggravating circumstances
outweigh mitigating factors "it shall impose a sentence of death on the offender." Ohio Rev.
Code §2929.03(D)(3 .
A non-mand tory statutory scheme that affords the jury the discretion to recommend
mercy in any case "a oids the risk that the death penalty will be imposed in spite of factors `too
123
intangible to write i to a statute' which may call for a less severe penalty, and avoidance of this
risk is constitution ly necessary." Conner v. Georgia, 303 S.E.2d 266, 274 (Ga. 1983). Other
state courts have als required a determination of "appropriateness" beyond mere weighing of
aggravating circurn tances and mitigating factors. California v. Brown, 726 P.2d 516 (Cal.
1985), rev'd on oth r rounds 479 U.S. 538 (1987).
In Californi v. Brown, 479 U.S. 538, 543 (1987), the Supreme Court repeated "the
Eighth Amendment's need for reliability in the determination that death is the appropriate
punishment in a spe
reliance on "extrane
disregard "mere sy
totally divorced fro
clearly approved an
or engendered by th
The Ohio st
mandated after a m
"jury is not preclud
64, 512 N.E.2d 585
the Supreme Court
to this extension of
ific case." In Brow the Court agreed that jurors may be cautioned against
us emotional factors," and that it was proper to instruct the jurors to
pathy." Id. This instruction referred to the sort of sympathy that would be
the evidence adduced during the penalty phase. The Court's analysis
mandated that jurors be permitted to consider mercy, i.e., sympathy tethered
penalty phase evidence.
tute does not permit an appropriateness determination; a death sentence is
re weighing. Finally, while the Supreme Court of Ohio has claimed that a
d from extending mercy to a defendant," State v. Zuern, 32 Ohio St. 3d 56,
593 (1987), Ohio jurors are not in fact informed of this capability. In fact,
f Ohio has permitted penalty phase jury instructions in direct contradiction
ercy capability. The Ohio "no-sympathy" instructions to juries do not in
any way distinguish between "mere" sympathy (untethered), and that sympathy tied to the
evidence presented n penalty phase, and therefore commit the very violation of the Eighth
Amendment which he California instruction had narrowly avoided.
124
While the S preme Court of Ohio claims extending mercy is permissible in Ohio, and
acknowledges that "[s]entencing discretion is an absolute requirement of any constitutionally
acceptable capital p'shment statute," id. at 65, 512 N.E.2d at 594, there is in fact no such
indication on the st tute's face, and no state court assurance that jurors are so informed. Bald,
unsupported asserti ns of compliance with the constitution are inadequate.
L. Ohio's "be ond a reasonable doubt" standard
1. The statutes fail to re uire roof be ond all doubt as to w-iilt that a ravatincircumstanc s outweigh miti atin factors, and the a ro riateness of death as apunishment efore the death sentence may be im osed.
The burden f proof required for capital cases should be proof beyond all doubt. The jury
should be instructe during both phases that the law requires proof beyond all doubt of all the
required elements. ost importantly, death cannot be imposed as a penalty except upon proof
beyond all doubt of both the crime itself and the fact that the aggravating circumstances outweigh
the mitigating facto s.
Insistence o reliability in guilt and sentencing determination is a vital issue in the United
States Supreme Co 's capital decisions. This emphasis on the need for reliability and certainty
is a product of the ique decision that must be made in every capital case - the choice of life or
death. The Suprem Court has consistently emphasized the "qualitative difference" of death as a
punishment, stating at "death profoundly differs from all other penalties" and is "unique in its
severity and irrevoc bility." Woodson, 428 U.S. at 305; Lockett, 438 U.S. at 605; Gardner v.
Florida, 430 U.S. 34 (1977); Greee, 428 U.S. at 187.
Proof beyon all doubt, a higher standard than the statutory proof beyond a reasonable
doubt, should be req ired in a capital case because of the absolute need for reliability in both the
125
guilt and penalty ph ses. The irrevocability of the death penalty demands absolute reliability.
Absent such a safeg d, Defendant may be subject to a sentence of death in violation of his
Eighth and Fourtee th Amendment rights.
The proof b yond a reasonable doubt standard is required in criminal cases "to safeguard
men from dubious atid unjust convictions." In re Winshin, 397 U.S. 358, 363 (1970). The
petitioner in Winshi 2 was a juvenile facing a possible six years imprisonment. Crucial to the
Court's decision wa its assessment of the importance of the defendant's right not to be deprived
of his liberty. Proo beyond a reasonable doubt was demanded in recognition that "the accused
during a criminal pr secution has at stake interests of immense importance, both because of the
possibility that he ay lose his liberty upon conviction and because of the certainty that he would
be stigmatized by t convictions." Id. Only this standard of proof adequately conunanded "the
respect and confide ce of the community in applications of the criminal law." Id. at 364.
In a capital ase, far more than liberty and stigmatization are at issue. The defendant's
interest in his life m st be placed on the scales. Only then can an appropriate balancing of the
interests be perform d; only then can one know whether the "situation demands" a particular
procedural safeguar L. Given the magnitude of the interests at stake in a capital case and the
necessity that the co unity "not be left in doubt whether innocent men are being condemned" a
high standard is req ired which reduces the margin of error "as much as humanly possible," Id.;
Eddines, 455 U.S. a 878. This is all the more so when a petitioner's "life" interest (protected by
the "life, liberty an d property" language in the Due Process Clause) is at stake in the proceeding.
Ohio Adult Parole uthori v. Woodard, 523 U.S. 272 (1998) (five Justices recognized a
distinct "life" intere t protected by the Due Process Clause in capital cases above and beyond
126
liberty and propertyl interests). The most stringent standard of proof that is "humanly possible" is
proof beyond all doi
The America
Court as a statute "c
standard at the sentc
Model Penal Code r
suffices to sustain ti
Model Penal Code f
imprisonment is aut
abt.
m Law Institute's Model Penal Code, cited by the United States Supreme
apable of meeting constitutional concerns," adopts the beyond-all-doubt
ncing phase. See Gregg v. Georgia, 428 U.S. 153, 191-195 (1976). The
andates a life sentence if the trial judge believes that "although the evidence
e verdict, it does not foreclose all doubt respecting the defendant's guilt."
210.6(1)(f). If the trial judge has any doubt of the defendant's guilt, life
matically imposed without a sentencing hearing. The words used are "all
doubt," not merely `f doubt" or "reasonable doubt."
2. Ohio's defmi ion of proof "be ond a reasonable doubt" results in a burden of roofinsufficientl stringent to meet the higher reliability requirement in ca ital cases at theguilt hase d this has not been cured by a ellate courts in their review of convictionsor death sent nces.
Ohio law pr vides standard jury instructions of "reasonable doubt" and "proof beyond a
reasonable doubt" a the applicable burden of proof in capital cases. Ohio Rev. Code
§2901.05(D). Howe er, Ohio's definition actually articulates the standard for the lower burden
of proof by a prepon erance of the evidence; thus unconstitutionally diluting Defendant's rights
to a fair trial. See C oss v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954); Holland v. United
tates, 348 U.S. 121 (1954); Scurry v. United States, 347 F.2d 468, 470 (D.C. Cir. 1965) (...
[I]mportant affairs is the traditional test for clear and convincing evidence ... The jury ... is
prohibited from con icting unless it can say beyond a reasonable doubt that defendant is guilty as
charged. ... To equa e the two in the juror's mind is to deny the defendant the benefit of a
127
reasonable doubt.).
State v. Naboznv, 5
Nabozny v. Ohio, 4
(1980).
State v. Crenshaw 51 Ohio App. 2d 63, 65, 366 N.E.2d 84, 84-85 (1977); cf
Ohio St. 2d 195, 375 N.E.2d 784 (1978), vacated on other grounds,
9 U.S. 811 (1978); State v. Seneff, 70 Ohio App. 2d 171, 435 N.E.2d 680
The Ohio re onable doubt instructions fail to satisfy the requirement of reliability in a
capital case. Even i Winship, when considering the reasonable doubt standard, the Court stated
that the fact finder ust be convinced of guilt "with utmost certainty," and that the court must
impress on the trier f fact the necessity of reaching a subjective state of certitude. Winship, 397
U.S. at 363, 364. O io's definition of a reasonable doubt is inadequate to meet even these
standards.
3. The Ohio de th enal statutes fail to re uire that the jury consider as a miti atin factorpursuant to hio Rev. Code §2929.04(B) that the evidence fails to preclude all doubt asto the defend t's guilt.
The languag of Ohio Rev. Code §§2929.04(D)(2) contemplates a balancing process
focusing upon the m tigating factors present in the case as compared to the offender's "guilt"
with respect to the a gravafing specif
In determini g the appropriateness of the death penalty, the fact that the evidence
presented failed to f reclose all doubt as to guilt must be considered as a relevant mitigating
factor. "The jury sh uld have before itic not
ations.
only the prosecution's unilateral account of the
offense but the defe se version as well. The jury should be afforded the opportunity to see the
whole picture ... ." alifornia v. Te 390 P.2d 381 (Cal. 1964). The failure to require jury
consideration of the act that the evidence does not foreclose all doubt as to guilt violates the
ds established for the imposition of the death penalty.
128
M. Electric ch ir is cruel and unusual punishment
Ohio Rev. C de §2949.22 authorizes execution by a "current of electricity." This mode
of punishment offe ds contemporary standards of decency. Trop v. Dulles. 336 U.S. at 101.
Electrocution inflic unnecessary pain and suffering. See Denno, Is Electrocution an
Unconstitutional M thod of Execution? The En ineerin of Death over the Cent , 35 Wm. &
Mary L. Rev. 551, 37-43, 672-72 (1994). See also Clisby v. Alabama 514 U.S. 1093 (1995)
(Stevens, Ginsburg, Breyer, JJ., dissenting from denial of stay); Poyner v. Murrav. 508 U.S. 931
(1993), 932 (Souter, Blackmun, Stevens, JJ., dissenting from denial of certiorari). Cf, Gregg v.
Georeia. 428 U.S. a 173 (Eighth Amendment proscribes "the unnecessary and wanton infliction
of pain").
N. Sentencing ^n individual to death in violation of treaties to which the United Statesof America s a signatory violates the Supremacy Clause of the United StatesConstitutio
International law binds each of the states that comprise the United States. Ohio is bound by
international law wh ther found treaty or in custom. Because the Ohio death penalty scheme violates
international law, D fendant cannot be subjected to the possibility of the death penalty.
1. Inten ational law binds the State of Ohio
"Internation 1 law is a part of our law[.J" The Paquete Habana, 75 U.S. 677, 700 (1900).
A treaty made by 11 e United States is the supreme law of the land. Article VI, United States
Constitution. Where state law conflicts with international law, it is the state law that must yield. See
Zschernig v. Miller, 3 89 U.S. 429, 440 (1968); Clark v. Allen, 331 U.S. 503, 508 (1947); United
States v. Pink 315 U S. 203,230 (1942); Kansas v. Colorado, 206 U.S. 46,48 (1907). The Paquete
Habana 175 U.S. at 700; The Nereide. 13 U.S. (9 Cranch) 388, 422 (1815); Asakura v. City of
129
Seattle, 265 U.S. 3 2, 341 (1924). In fact, international law creates remediable rights for United
States citizens. Fil i a v. Pena-Irala, 630 F.2d 876 (2nd Cir. 1980); Forti v. Suarez-Mason, 672
F.Supp. 1531 (N.D. Cal. 1987).
2. Ohi 's obligations under charters, treaties, and conventions
The United tates's membership and participation in the United Nations and the Organization
of American States reates obligations in all fifty states. Throughthe U.N. Charter, the United States
committed itselfto p omote and encourage respect for human rights and fundamental freedoms. Art.
1(3). The United tates bound itself to promote human rights in cooperation with the United
Nations. Art. 55-56 The United Staies again proclaimed the fundamental rights of the individual
when it became a m mber of the Organization of American States. OAS Charter, Art. 3.
The United Nations has sought to achieve its goal of promoting human rights and
fundamental freedo is through the creation of numerous treaties and conventions. The United States
has ratified several )f these including: the International Covenant on Civil and Political Rights
(ICCPR) ratified in 992, the International Convention on the Elimination of All Forms of Racial
Discrimination (IC RD) ratified in 1994, and the Convention against Torture and Other Crael,
Inhuman or Degrad ng Treatment or Punishment (CAT) ratified in 1994. Ratification of these
treaties by the Unite States expressed its willingness to be bound by these treaties. Pursuant to the
Supremacy Clause, t e ICCPR, the ICERD, and the CAT are the supreme laws of the land. As such,
the United States mu t fulfill the obligations incurred through ratification. President Clinton recently
reiterated the United States's need to fulfill its obligations under these conventions when he issued
Executive Order 13107. In pertinent part, the Executive Order states:
By th authority vested in me as President by the Constitution and the
130
laws of the United States of America, and bearing in mind theobligations of the United States pursuant to the InternationalCov nant on Civil and Political Rights (ICCPR), the ConventionAgainst Torture and Other Cruel, Inhuman or Degrading Treatmentor P nishment (CAT), the Convention on the Elimination on AllFo s of Racial Discrimination (CERD), and other relevant treatiesconc rned with the protection and promotion of human rights towhic the United States is now or may become a party in the future,it is ereby ordered as follows:
Sect'on 1. Implementation of Human Rights Obligations.
(a) t shall be the policy and practice of the Government of theUnit d States, being committed to the protection and promotion ofhum rights and fundamental freedoms, fully to respect andimpl ment its obligations under the international human rightstreat'es to which it is a party, including the ICCPR, the CAT, and the
Ohio is not f lfilling the United States's obligations underthese conventions. Rather, Ohio's
death penalty sche e violates each convention's requirements and thus must yield to the
requirements of inte ational law. See discussion infra Subsection 1.
a. Ohio's statutory scheme violates the ICCPR's and ICERD's guarantees ofequal protection and due process
Both the IC PR and the ICERD guarantee equal protection of the law. ICCPR Art. 2(1), 3,
14, 26; ICERD Art. 5(a). The ICCPR farther guarantees due process via Articles 9 and 14, which
includes numerous
impartial tribunal (
for the preparation
call and question wit
and the protection a
provide equal prote
considerations including: a fair hearing (Art. 14(1)), an independent and
. 14(1), the presumption of innocence (Art. 14(2)), adequate time and facilities
f a defense (Art. 14(3)(a)), legal assistance (Art. 14(3)(d)), the opportunity to
esses (Art. 14(3)(e)), the protection against self-incrimination (Art. 14(3)(g)),
ainst double jeopardy (Art. 14(7)). However, Ohio's statutory scheme fails to
ion and due process to capital defendants as contemplated by the ICCPR and
131
the ICERD.
Ohio's statul
for arbitrary and w
sentencing procedur
to provide individtk
burdens a defendan
mandatory submissi
ory scheme denies equal protection and due process in several ways. It allows
equal treatment in punishment. See discussion infra Section A. Ohio's
s are unreliable. See discussion infra Section B. Ohio's statutory scheme fails
tized sentencing. See discussion infra Section C. Ohio's statutory scheme
's right to a jury. See discussion infra Section D. Ohio's requirement of
m of reports and evaluations precludes effective assistance of counsel. See
discussion infra Sect^on E. Ohio Rev. Code §2929.04(B)(7) arbitrarily selects certain defendants who
may be automaticall
proportionality and a
a result, Ohio's stal
protection and due I
Clause of the United
b. Ohio
The ICCPR s
to life and provides
imposition of the dea
women are protectec
abolition of the deat
However, sei
life. Punishment is
procedures are unrel
y eligible for death upon conviction. See discussion infra Section F. Ohio's
ppropriateness review is wholly inadequate. See discussion infra Section I. As
utory scheme violates the ICCPR's and the ICERD's guarantees of equal
rrocess. This is a direct violation of international law and of the Supremacy
States Constitution.
s statutory scheme violates the ICCPR's protection against arbitrary execution
peaks explicitly to the use ofthe death penalty. The ICCPR guarantees the right
that there shall be no arbitrary deprivation of life. Art. 6(1). It allows the
th penalty only for the most serious offenses. Art. 6(2). Juveniles and pregnant
I from the death penalty. Art. 6(5). Moreover, the ICCPR contemplates the
penalty. Art. 6(6).
,eral aspects of Ohio's statutory scheme allow for the arbitrary deprivation of
arbitrary and unequal. See discussion infra Section A. Ohio's sentencing
iable. See discussi on infra Section B. Ohio's statutory scheme lacks
132
individualized sent ncing. See discussion infra Section C. Ohio's statutory definition of the (B)(7)
mitigator renders s ntencing unreliable. See discussion infra Section F. The (A)(7) aggravator
maximizes the risk f arbitrary and capricious action by singling one class of murders who may be
eligible automatical y for the death penalty. See discussion infra Section G. The vagueness of Ohio
Rev. Code §§2929
discussion infra Se
those who deserve
executions in Ohio
penalty protections.
Clause of the Unite
3(D)(1) and 2929.04 similarly render sentencing arbitrary and unreliable. See
tion H. Ohio's proportionality and appropriateness review fails to distinguish
eath from those who do not. See discussion infra Section I. As a result,
esult in the arbitrary deprivation of life and thus violate the ICCPR's death
This is a direct violation of international law and a violation of the Supremacy
States Constitution.
c. Ohio^s statutory scheme violates the ICERD's protections against racediscr mination.
The ICERD, ^speaking to racial discrimination, requires that each state take affirmative steps
to end race discrimi
to sit idly by when
statutory scheme im
Section A. A sche
which disproportion
Ohio's failure to re
Supremacy Clause o
ation at all levels. Art. 2. It requires specific action and does not allow states
onfronted with practices that are racially discriminatory. However, Ohio's
oses the death penalty in a racially discriminatory manner. See discussion infra
e that sentences blacks and those who kill white victims more frequently and
tely places African-Americans on death row is in clear violation of the ICERD.
tify this discrimination is a direct violation of international law and of the
the United States Constitution.
d. Ohio's statutory scheme violates the ICCPR's and the CAT's prohibitions againstcruel, inhuman or degrading punishment
rohibits subjecting any person to torture or to cruel, inhuman or degrading
133
treatment or punish
torture, which inclui
a person for the pur
Ohio's death penal
violation of both th
Supremacy Clause i
nent. Art. 7. Similarly, the CAT requires that states take action to prevent
es any act by which severe mental or physical main is intentionally inflicted on
)ose of punishing him for an act committed. See Art. 1-2. As administered,
y inflicts unnecessary pain and suffering, see discussion infra Section J, in
ICCPR and the CAT. Thus, there is a violation of international law and the
f the United States Constitution.
e. Ohio s obligations under the ICCPR, the ICERD, and the CAT are not limited by thereser ations and conditions placed on these conventions by the Senate.
While cond tions, reservations, and understandings accompanied the United States's
ratifications of the ICCPR, the ICERD, and the CAT, those conditions, reservations, and
understandings c t stand for two reasons. Article 2 Section 2 of the United States Constitution
provides for the adv'ce and consent of two-thirds of the Senate when a treaty is adopted. However,
the United States C nstitution makes no provision for the Senate to modify, condition, or make
reservations. The S nate is not given the power to detennine what aspects of the treaty the United
States will and will ot follow. Their role is to simply advise and consent.
However, th Senate's inclusion of conditions and reservations in treaties goes beyond that
role of advice and c nsent. The Senate picks and chooses which items of a treaty will bind the
United States and hich will not. This is the equivalent of the line-item veto, which is
unconstitutional. C inton v. Ci of New York, 524 U.S. 417, 438 (1998). The United States
Supreme Court spec fically spoke to the enumeration of the president's powers in the Constitution
in finding that the pr sident did not possess the power to issue line item vetoes. Id. If it is not listed,
then the President 1 cks the power to do it. See id. Similarly, the Constitution does not give the
134
power to the Senat^ to make conditions and reservations, picking and choosing what aspects of a
treaty will become l^aw. Thus the Senate lacks the power to do just that. Therefore, any conditions
or reservations made by the Senate are unconstitutional. See id.
The Vienna Convention on the Law of Treaties further restricts the Senate's imposition of
reservations. It allo s reservations unless: they are prohibited by the treaty, the treaty provides that
only specified res ations, not including the reservation in question, may be made, or the
reservation is inco patible with the object and purpose of the treat. Art. 19(a)-(c). The ICCPR
specifically preclud s derogation of Articles 6-8, 11, 15-16, and 18. Pursuant to the Vienna
Convention, the U ted States's reservations to these articles are invalid under the language of the
treaty. See id. Furth r, it is the purpose of the ICCPR to protect the right to life and any reservation
inconsistent with t t purpose violates the Vienna Convention. Thus, United States reservations
cannot stand under e Vienna Convention as well.
6. Ohio's o ligations under the ICCPR are not limited by the Senate's declaration that it isnot s If-executing
The Senate i dicated that the ICCPR is not self-executing. However, the question ofwhether
a treaty is self-execu 'ng is Ieft to the judiciary. Frolovav. Union of Soviet Socialist Republics, 761
F.2d 370 (7th Cir. 1 85) (citing Restatement (Second) of Foreign Relations Law of the United
States, Sec. 154(1) ( 965)). It is the function of the courts to say what the law is. See Marbury v.
Madison, 5 U.S. 13 (1803).
Further, requ 'ng the passage of legislation to implement a treaty necessarily implicates the
participation of the ouse of Representatives. By requiring legislation to implement a treaty, the
House can effectivel* veto the treaty by refusing to pass the necessary legislation. However, Article
135
2, Section 2 exclud s the House of Representatives from the treaty process. Therefore, declaring a
treaty to be not self- xecuting gives power to the House of Representatives not contemplated by the
United States Coi stitution. Thus, any declaration that a treaty is not self-executing is
unconstitutional. S e Clinton, 417 U.S. at 438.
3. Ohi 's obligations under customary international law
Intemation law is not merely discerned in treaties, conventions and covenants. Intemational
law "may be ascerta ned by consulting the works ofjurists, writing professedly on public law; or by
the general usage an practice of nations; or by j udicial decision recognizing and enforcing that law."
United States v. S nith, 18 U.S. (5 Wheat.) 153, 160-61 (1820). Regardless of the source
"international la
The Univer
international law by
of `binding treaty' a
the international co
William A. Schabas
The DHR gu
to life (Art. 3), prohi
is largely reminisce
Ohio's statutory sch
violates customary i
However, th
directs courts to loo
a part of our law[.]" The Paauete Haban a, 75 U.S. at 700.
a] Declaration of Human Rights (DHR) has been recognized as binding
the judiciary and commentators. The DHR "no longer fits into the dichotomy
ainst `non-binding pronouncement,' but is rather an authoritative statement of
unity." Filartiga, 630 F.2d at 883 (internal citations omitted); see also
The Death Penalty as Cruel Treatment and Torture (1996).
antees equal protection and due process (Art. 1, 2, 7,11), recognizes the right
its the use of torture or cruel, inhuman or degrading punishment (Art. 5) and
of the ICCPR. Each of the guarantees found in the DHR are violated by
me. See discussion infra Sections K(2)(a)-(c). Thus, Ohio's statutory scheme
emational law as codified in the DHR and cannot stand.
DHR is not alone in its codification of customary international law. Smith
to "the works of jurists, writing professedly on public law; or by the general
136
usage and practice
ascertaining intema
that its statutory sch
of nations; or by judicial decision recognizing and enforcing that law" in
ional law. 18 U.S. (5 Wheat.) at 160-61. Ohio should be cognizant of the fact
me violates numerous declarations and conventions drafted and adopted by the
United Nations and the Organization of American States, which may because of the sheer number
of countries that su scribe to them, codify customary international law. See id. Included among
these are:
1. The erican Convention on Human Rights, drafted by the Organization of
American States an entered into force in 1978. It provides numerous human rights gnarantees,
including: equal pr tection (Art. 1, 24), the right to life and precludes the arbitrary deprivation of
life (Art. 4(1)), allo s for the imposition of the death penalty only for the most serious crimes (Art.
4(2)), prohibits re-e tablishing the death penalty once abolished (Art. 4(3)), prohibits torture, cruel,
inhuman or degradi g punishment (Art. 5(2)), and guarantees the right to a fair trial (Art. 8).
2. The United Nations Declaration on the Elimination of All Forms of Racial
Discrimination proc aimed by U.N. General Assembly resolution 1904 (XVIII) in 1963. It prohibits
racial discriminatio and requires that states take affirmative action in ending racial discrimination.
3. The merican Declaration of the Rights and Duties of Man adopted by the Ninth
International Confer nce of American States in 1948. It includes numerous human rights guarantees,
including: the right
and due process (At
4. Deci
Other Cruel, Inhun
0 life (Art. 1), equality before the law (Art. 2), the right to a fair trial (Art. 16),
.26).
xation on the Protection of All Persons from Being Subjected to Torture and
an or Degrading Treatment or Punishment adopted by the U.N. General
Assembly in Resolu^ion 3452 (3XX) in 1975. It prohibits torture, defined to include severe mental
137
or physical pain in entionally inflicted by or at the instigation of a public official for a purpose
included punishing him for an act he has committed, and requires that the states take action to
prevent such action . Art. 1, 4.
5. Safe uardsGuaranteeingProtectionoftheRiglitsofThoseFacingtheDeathPenalty
adopted by the U. . Economic and Social Council in Resolution 1984/50 in 1984. it provides
numerous protectio to those facing the death penalty, including: permitting capital punishment for
only the most seriouo crimes, with the scope not going beyond intentional crimes with lethal or other
extremely grave co sequences ( 1), requiring that guilt be proved so as to leave no room for an
alternative explanat on of the facts (4), due process, and the carrying out of the death penalty so as
to inflict the minim possible suffering (9).
6. The econd Optional Protocol to the ICCPR, aiming at the abolition of the death
penalty, adopted an proclaimed by the U.N. General Assembly in Resolution 44/128 in 1989. This
prohibits execution Art. 1(1)) and requires that states abolish the death penalty (Art. 1(2)).
These doc ents are drafted by the people Smith contemplates and are subscribed to by a
substantial segment of the world. As such they are binding on the United States as customary
international law. comparison of the Sections A - J clearly demonstrates that Ohio's statutory
scheme is in violati n of customary international law.
0. Conclusion
Ohio's death penalty scheme fails to ensure that arbitrary and discriminatory imposition of
the death penalty 11 not occur. The procedures actually promote the imposition of the death
penalty and, thus, e constitutionally intolerable. Ohio Revised Code §§2903.01, 2929.02,
2929.021, 2929.022, 2929.023, 2929.03, 2929.04, and 2929.05 violate the Fifth, Sixth, Eighth and
138
Fourteenth Amendi
Ohio Constitution.
violates internation
Pursuant to
defendant-appellant
conviction in this m
ents to the United States Constitution and Article I, §§ 2, 9, 10, and 16 of the
Furthermore, subjecting Defendant to the prospect of capital punishment
' law and the Supremacy Clause of the United States Constitution.
CONCLUSION
ie preceding Propositions of Law IV, V, VI, IX, XI, XII, XVII and XVIII, the
Clarence Fry, Jr, respectfully requests that this Honorable Court reverse the
tter and remand for a new trial. In the alternative, pursuant to Propositions ofe
Law I, II, III, VII, X,JXIV, XV, XVI, XVII, XIX and XX, the appellant respectfully requests reverse
the sentence of deal
Proposition of Law
dismissed and for th
to R.C. §2903.02.
a and remand this matter for a new sentencing hearing. Finally, pursuant to
VIII, it is respectfully requested that the conviction of Aggravated Murder be
s Court to enter a conviction for the lesser included offense of Murder pursuant
y subryfitt
QI^GE C: r P
Counsel for Appellant
139
CERTIFICATE OF SERVICE
A copy of e foregoing Merit Brief of Appellant was served upon Sherry Bevan Walsh,
Esq., Summit Coun Prosecutor, 53 University Street, 7th Floor, Akron, OH 44308-1680 by
Regular U.S. Mail n this ^y of June, 2007.
140
JUN-04-2007 09t51
II^
III
6143879539 P.021ll Llii UY!/lGLtlO ^VLL14 Vl VlllV Vn'1-uy
^ sTATE OF OHIO ) CASE NO. V V
Appellee ) On Appeal from the Summit Counry} Common Pleas Court,
vs. ) Case No. 2005-08-3007
DAVID44039C1evelt216-36ddouet
LARENCE FRY, dR. ) ON COMpUrER-ALM
Appellant ) CAPITAL CASE
NbTICE OF APPEAL OF APPELLANT CLARENCE FRY, JR.
L. DOUGHTEN, #0002847 SHERRI BEVAN WALSI•IClair Avenue Summit County Prosecutorid, Ohio 44103 53 University Avenue-1112 Akmn, Ohio 44308ena.vahoo,oom 330-643-2788
GEOR E C. PAPPAS, #0037374159 So th Main Street1002 ey BuildingAkron, Ohio 44308330-53 -6185Couas l of Recordc a taw ah
COUN EL FOR APPELLANT COUNSEL FOR APPELLEE
AUG 0 8 2006
MARCiA J. MENGEL, CLERKSUPREME COURT OF QHIO
1
JIJN-04-2007 09! 51I 6143E79539 P.03
I : R .-N" FRY_ JNbTICE OF APPEAL OF APPELLANT R>
pellant, Clarence Fry, Jr., hereby gives notice of appeal to the Supreme
in this atter.
Appetlint Fry, in his direct appeal of right, appeals both the conviction and sentence
Court o Ohio from the Judgment of the Summit County Court of Common Pleas,
entered in Case No. CR 2005-08-3007, on July 11, 2006.
Avw•fejo'GBf?ROVC. PAPP
un 1 for Appellant159 So th Main Street1002 ey Building
c aslawavaboo.cCouns of RecortlAkron, Ohio 44308
DAVID L. DOUGHTEN #(f0028474403 St. Clair AvenueCleveland, Ohio 44103216-361-1112ddoughtenjla vahoo.com
PROOF OF SERVICE
I ereby certify that a copy of the foragoing has been mailed by regular U.S.
1V1a11 'sWday of August, 2006, to the Summit County Prosecutor's Office, 53
Unive ity Avenue, .41ann, Ohio 44308.
DAYID L. UGHTEN 2847CtB RCrE C. PAPPAS #0037374Counsel for Appellant
I
2
TOTAL P.03
COPY
THE STATE OF OHI
vs.^. .., .
,,,,;,,CLARENCE FRY, J^V_Lr I'G O?= COURTS
IN THE COURT OF COMMON PLEASCOUNTY OF SUMMIT
MAY TERM 2006
Case No. CR 05 08 3007
JOURNALENTRY
-wit: The 26 day of June, A.D., 2006, now comes the Assistant
on behalf of the State of Ohio, the Defendant, CLARENCE FRY,
with counsel, LAWRENCE WHITNEY and'"KERRY OBRIEN, for
A verdict of uilty having been returned by a Jury in this matter, a hearing
was held pursuan to Section 2929.03 of the Ohio Revised Code to determine the
imposition of sent nce for the capital offenses herein.
In consider tion of all the evidence and testimony presented at the hearing, the
Jury recessed an deliberated.
And thereaf er, to-wit: On June 26, 2006 at 8:15 P.M. the Jury having
mitigation hearing
JR., being in Cou
Prosecuting Attorn
THIS DAY, t
for July 11, 200
The Defen
Defendant on Co
Based on t
detection, appre
attempting to co
was committing,
circumstance the
mitigating factors
unanimously fou
APPROVED:July 10, 2006tms
d by proof beyond a reasonable doubt that the aggravating
Defendant was found Guilty of committing outweighed the
as to the charge of AGGRAVATED MURDER, while the Defendant
tempting to commit or fleeing immediately after committing or
mit AGGRAVATED BURGLARY, and for the purpose of escaping
ension, trial or punishment for DOMESTIC VIOLENCE.
e above findings, the Jury recommended "DEATH" for the
t 1 and SPECIFICATION ONE AND TWO TO COUNT ONE,
ant be remanded to the Summit County Jail to await sentencing set
at 1:15 P.M.
PATRICIA A. COSGROVE, JudgeCourt of Common PleasSummit County, Ohio
cc: Prosecutor John Mascola/Angela Walls AlexanderCriminal A signmentAttorney K rry O'BrienAttorney L wrence Whitney
/^ ".^
2C^5 OL I i ^^1 1* 07: ^ .
!i, V^_l^,
riC^, ;;fC OF COURTS
IN THE COURT OF COMMON PLEAS
COUNTY OF SUMMIT
STATE OF HIO
aintiff
CASE NO. CR 2005 08 3007
JUDGE COSGROVE
SENTENCING ORDER
s opinion is rendered pursuant to Ohio Revised Code 2929.03 (F). The Summit
County d jury returned an indictment charging the Defendant with Aggravated Murder, with
specificatio that the Aggravated Murder was committed during the commission of an
Aggravated 13urglary and/or to prevent the victim, Tamela Hardison from testifying in another
1 proceeding r in retaliation for her testimony in the other case. These charges arose out of the
stabbing dea of Tamela Hardison, the defendant's girlfriend, on July 31, 2005. On July 18,
1 2005, Ms. H dison swore out a complaint against the defendant for Assault. This charge would
be later ame ded by the Grand Jury to Domestic Violence. The Domestic Violence charge was
pending at t e time of Ms. Hardison's death.
s;
4-3
s defendant stood at his arraignment and defense counsel entered a plea of not
! capital speci
specificatio
Evidence, In
= MITIGATI
p
which time t
beyond a re
and backgro
without pres
set forth in
e was tried to a jury which trial commenced on June 2, 2006. The jury retumed a'
14 and R.C. 2929.04 (A) (7). The unanimous verdict was returned on June 14,
tion one and two to Count One setting forth criteria for a capital offense pursuant
ilty to Aggravated Murder as contained in Count One of the indictment together
addition to the jury finding the defendant guilty of Aggravated Murder with two
ations, the defendant was found guilty of Aggravated Murder without capital
, Murder, Aggravated Burglary, two counts of Domestic Violence, Tampering with
imidaflon of a Crime Victim or Witness, and Menacing by Stalking.
N HEARING
suant to R.C. 2929.04 (B), a mitigation hearing was held on June 28, 2006, at
e jury was instructed to consider and weigh the aggravating circumstances proved
onable doubt, the nature and circumstances of the offense, the history, character
nd of the offender, and all of the factors outlined in this section. The State rested
ntation of additional evidence upon its proof of the two aggravating circumstances
or unsworn, statement on his behalf at the mitigation hearing.
ing the mitigation hearing on his behalf. The defendant also declined to make
structed his counsel not to present any evidence at the mitigation hearing. Mr. Fry,
permit Attorney Lawrence J. Whitney, one of his attomeys, to make a statement on
or to the mitigation hearing, the defendant, Clarence Fry Jr. stated on the record
ecification one and two to Count One, the charge of Aggravated Murder.
2,
Defendantls Comr. etency To Waive Presentation Of Miti¢ation Evidence
or to the commencement of the niitigation hearing, and out of the hearing of the
jury, the tri court conducted a lengthy inquiry of the defendant and his counsel regarding Mr.,
Fry's decisi n to waive presentation of any evidence at the mitigation hearing. The inquiryby
the trial co focused on two issues: 1) whether the defendant was competent to make a
decision to aive evidence at the mitigation hearing, and 2) whether the record evinces a
knowing a.n voluntary waiver. As stated numerous times by the Ohio Supreme Court, a capital
ecision to forgo mitigation "does not by itself call his competence into question".
State v. Co*ans (19991. 87 Ohio St.3d 68, State v. Berry L995). 72 Ohio St.3d 354. 361. State v.
50 Ohio St.3d.
ie Eighth Amendment does not require that mitigation evidence be foisted upon a
his counsel when he has knowingly, and of his own volition, decided against
presentation of such evidence. Tyler, sunra at 27-29. In State v. Ashworth ( 1999). 85 Ohio St.
3d 56. 63
mitigating e
waive his ri
(Berry), a co
decisioti, exi
no independ
L980 448
e Ohio Supreme Court emphasized that "a rule requiring the presentation of
idence would be impossible to enforce: " Where a capital defendant decides to
t to present mitigation evidence (Tyler) or review a conviction and sentence
irt must inquire into his competence to do so if some reason, other than that
ts to question competence. See, also Rees v. Peyton (19661. 384 U.S. 312. Where
t reason to question competency exists, no hearing is required. Hammett v. Texas
has the mental capacity to understand the choice between life and death and to
t is mentally competent to forgo the presentation of mitigating evidence *** if
T^he Ohio Supreme Court has enunciated the following test to deternrine whether a
.5. 725.
3
make a kno ing and intelligent decision not to pursue the presentation of evidence. The
defendant m st fully comprehend the ramifications of his decision and must possess the ability to
reason logic
idence his attomeys were prepared to present, including testimony from his mother,
or a death sentence without any evidence in mitigation. Mr. Fry knew what
ng any mitigation evidence, stating that the jury would likely have no choice other
e defendant clearly and unequivocally stated that he understood the ramifications
y, i.e., to choose means that relate logically to his ends." Ashworth, at 69.
one of his b thers, and a mitigation expert, Dr. James W. Siddall. According to the defense
', proffer, Dr. iddall would have offered evidence regarding the defendant's rocky relationship
with his fath growing up and the defendant's drug usage that affected his judgment decisions.
According t the proffer and Dr. Siddall's report (marked as Court's Exhibit One for appellate
purposes only), the defendant possesses an average intelligence quotient, scoring in the upper
normal rang
ording to the defendant, as well as his attorneys, the defendant had never been
diagnosed with a mental disease or defect. The defendant had never been counseled or
I hospitalized f'or any mental problem or illness. Dr. Siddall's report evinces no diagnosis of
mental illneO or defect. Further, it was represented to the court that at no time had any family
:, member or fl1iend of the defendant expressed an opinion that Mr. Fry was mentally ill and in
need of psyc ological or psychiatric treatment. Both defense counsel, Attomey Lawrence J.
Whitney and Kerry O'Brien, two of the most experienced and competent attomeys in the defense
of capital cas , stated that they had observed no behavior warranting a competency evaluation
4
T e defendant's reasoning for waiving the presentation of mitigation evidence was
based upon 's belief that any jury that had found him guilty of the capital specifications that the
Aggravated urder of Tamela Hardison occurred during the commission of an Aggravated
{ Burglary or to prevent or retaliate for her testimony in the Domestic Violence case were "too
II stupid" in hi opinion to follow the law. The defendant maintained this position even though the
trial court e phasized to the defendant that it only took the vote of one juror to prevent the return
: of a sentencel of death.
like Cowans, the defendant permitted his counsel to conduct a reasonable
investigation of any potential mitigating evidence. Sanders v. Brown. 2006 U.Spp. LEXIS 6672
(Brown II. e defendant's attomeys were prepared to present evidence at the mitigation
earing as to why the defendant should not receive a death sentence. The attorneys had
of his brothe
James W. Si
proceedings.
with capital
mitigation h
ily and friends of Mr. Fry and were ready to put the defendant's mother and one
s on the stand. Further, the defense was prepared to present the testimony of
, Ph.D., a clinical and forensic psychologist that specializes in mitigation
It was only after the jury returned a guilty verdict on the Aggravated Murder count
ecifications that the defendant chose to forgo presentation of evidence at the
as cavalier, it in no way denoted any indicia of incompetency. At times, during the
Ilthough the defendant's behavior throughout the trial at times could be
g•
course of thel trial proceedings, the defendant appeared to be smiling or amused by some of the
ant, in the court's opinion, after having the opportunity to observe him in trial for
esting or writing down questions for his counsel to ask the witnesses. The behavior
timony. Despite this behavior, Mr. Fry was observed by the court confening with
5
two weeks well as pretrial hearings, was the product of the defendant's narcissism and pique
as opposed t evidence of mental illness or disease.
Knowin A d Intelli ent Waiver Of Defendant's Ri ht To Present Miti ation Evidence
proceeded to
was a knowi
court in this
importance
counsel, and
Pursuant to
defendant o
evidence is,
: defendantu
the defen
aving determined that the defendant was competent to waive mitigation, the court
address on the record whether the waiver of the right to present mitigating evidence
g and voluntary decision by the defendant. As in State v. Ashworth, sunra, the trial
ase conducted a colloquy with the defendant to determine that he understood the
d ramifications of presenting niitigating evidence, discussed the issue with his
confirmed in open court that he wished to waive presentation of evidence.
hworth, the record affmnatively demonstrates that (1) the court has informed the
the right to present mitigating evidence, (2) the court has explained what mitigating
3) the defendant understands the importance of mitigating evidence, (4) the
derstands the use of mitigating evidence to offset the aggravating circumstances, (5)
understands the effect of failing to present mitigating evidence, and (6) the
defendant wishes to waive mitigation. Ashworth at 62.
T
his right top
acknowledg
would ret
evidence, its
opposition t
presentation
e defendant responded appropriately to the court's questions. W. Fry understood
esent mitigation evidence, the purpose of presenting such evidence and even
d that without the presentation of any evidence at the mitigation hearing, the jury
a death verdict against him. Fully comprehending the nature of the mitigation
purpose and the consequences of not presenting any mitigating evidence in
the aggravating circumstances, the defendant decided of his own free will to waive
f any mitigation evidence. In addition to his opinions regarding the jury, when
6
asked by the ^OUrt whether he wanted to die, Mr. Fry stated that at his age (46) that any life
sentence waslthe same as a death sentence.
e defendant stated that it was his voluntary decision not to present any evidence at
hearing. He represented that no person had promised him anything, or forced or
to entering into his decision to forgo the presentation of evidence. The court also
dant additional time to speak with his mother who had attended the entire trial.
decision to waive the evidence. After speaking with his mother for approximately
s, Mr. Fry indicated that his decision remained the same and that he wished to
on of any evidence. When asked by the court if there was anyone else he wished
regarding his decision, Mr. Fry stated that there was no one that he wished to speak
g the matter.
e defendant acknowledged that both of his attorneys had tried to repeatedly
that it was in his best interest to present mitigation evidence. Despite being so
fendant held steadfast in his decision to waive the presentation of evidence at the
mitigation h^ring. Based on the defendant's colloquy with the court, the trial court found that
the defendant's decision to waive the presentation of mitigation evidence was the product of
thoughtful d ision of the defendant. There is no question based upon the facts presented in the
record that t e defendant's decision to forgo the presentation of evidence was the product of a
! knowing, vo untary and intelligent decision on the part of Clarence Fry, Jr.
MITIGATION EVIDENCE PRESENTED AT TRIAL
spite of the defendant's attempt to preclude mitigating evidence, the record in this
oid of evidence that could be considered mitigating. During the trial, the defense
evelop several mitigating factors that the court later instructed the jury on during the
7
penalty phas . The mitigating factors presented for the jury's consideration in the mitigation
phase of this ase were as follows: (1) the victim induced or facilitated the crime by striking the
defendant on the head with an ashtray during a verbal confrontation with Ms. Hardison who was
using drugs .C. 2929.04 (B) (1), (2) the defendant's long standing drug usage that affected his
judgment animpulse control, (R.C. 2929.04 (B) (7), and (3) the fact that the defendant had the
love and affe on of family members, particularly his mother and at least one of his brothers
(ILC. 2929. (B) (7). The court will now discuss each mitigating factor in detail.
as claimed by the defendant, Ms. Hardison had in fact induced or facilitated the
commission f the Aggravated Murder, this would be entitled to great weight. However, apart
from the def dant making this allegation in his statement to police when he admitted killing the
victim, there is not medical or physical evidence to support defendant's assertion. According to
Mr. Fry's s tement, he and Ms. Hardison were verbally arguing when she suddenly "hit him
with an ash ay'°, *** "he saw stars", and then he repeatedly stabbed the victim. There was no
eeevidence th the defendant was injured in the altercation. He apparently was well enough to fl
to West Vir ''a immediately after the killing where he remained for several days before he was
apprehend . According to footage from a news report from a West Virginia television station at
the time of fendant's apprehension by police, Fry shows no evidence of injury. The defendant
made no cl of a head injury when he was booked into jail in West Virginia or when he was
booked into the Summit County Jail. The defendant was extradited back to Ohio. According to
crime scene photographs, the police never found an ashtray at the crime scene.
he only evidence of provocation comes from the self-serving and unsubstantiated
; statement b^ the defendant to law enforcement. Based on the evidence at trial, this mitigatingI
' ' factor carri little or no weight with the court. If the defendant was "provoked" by the victim
8
into committ ng the homicide, this would not explain why the defendant stabbed the victim four
times, includ g twice in the back. Testimony fcom the victim's grandson indicated that his
grandmother was lying on the couch with another grandchild at the time Mr. Fry entered the
house.
e fact that the victim had a small amount of cocaine in her system at the time of her
death carries little or no weight. The Summit County Medical Examiner, Dr. Lisa Kohler could
not pinpoint time of ingestion. There was no evidence that drug usage on the part of the victim
induced or f ilitated the offense apart from defendant's unsubstantiated assertion.
e next mitigating factor brought forward by the defendant is evidence of the
defendant's 1 ngthy abuse of illegal drugs, in particular, cocaine. The fact that defendant was a
drug abuser i entitled to some weight. State v. Sowell, 39 Ohio St. 3d 366. This court finds,
however, tha the weight to be given to this mitigating factor is niinimal. Although the trial
testimony de onstrated that the defendant was a frequent user of illegal drugs, he does not allege
in his statem nt to law enforcement that he stabbed the victim due to his drug usage. We are left
to only spec late whether the defendant's drug usage (if he used drugs the day of the homicide)
contributed i any way to the commission of the Aggravated Murder.
ie final mitigating factor bmught forward for consideration by the defense was the
close and lo ing relationship the defendant had with his mother, and one of his brothers,
Lawrence F. During the trial, the State produced numerous taped phone conversations
° between the efendant's mother and the defendant made while incarcerated in jail. State v.
Lawrence 1 89 44 Ohio St. 3d 24. 33.
T e court gave little weight to this testimony. While the defendant obviously loves
his mother, if is interesting to note that in the hundred of minutes of phone conversations
9
recorded wi
;'. disabled in a
even minimi
1 ! victim woul
his mother t
relationship
provided in
CONCLUS
T
imposed on
his mother, he only inquired on one occasion as to her health status although she is
heelchair. In the vast majority of the convcrsations, Fry attempted to justify or
e his actions toward the victim, laughing with his mother at one point how the
not be stealing any more clothes. In most conversations, the defendant is asking
send him money for the connnissary. The defendant also appeared to have a close
th his brother, Lawrence, although no speaifics about the relationship were
al.
ON
court concurs with the jury's recommendation that the sentence of death be
larence Fry, Jr. In so concurring, this court has considered all mitigating factors set
for in R.C. 229.04 (B), the existence of any other mitigating factors and the aggravating
and Fourteenth Amendment in a capital case. Eddings. V. Oklahoma, 455 U.S.
pon other capital cases examined by the court, the death penalty sentence in this
applied the type of individualized consideration of mitigating factors as required
nable doubt. The court has considered as a matter of law any relevant mitigating
nnined that the aggravated circumstances do outweigh the mitigating factors
s found to exist by the jury as well as all evidence adduced at trial. As a result, this
case is not disproportionate to other capital cases with sintilar facts.
on a review of the record and case precedent, the court finds that the
ircumstances of which the defendant was found guilty were sufficient to outweigh
the evidence of any mitigating factors presented in this case. The determination was made by the
court separat ly and distinctly from that made by the jury and it was based upon consideration of
10
1i
all the evid ce produced in the trial phase of this case. Accordingly, the court sentences the
defendant C larence Fry, Jr. to death. This pronouncement was made on July 11, 2006.
IS SO ORDERED
Cc: Assist Prosecutor John MascoloAssist t Prosecutor Angela Walls-AlexanderAttome Lawrence J. WhitneyAttome Kerry O'Brien
dleCR05-3007
11
JUL,-28-2006 13:44 From:UDGE COSGRDVE 3306438731 To:216881392B p.2%35
coPY
THE STATE OF OHIO
vs.
CLARENCE FI2'(page 1 of 4)
THIS DAA
Proaecuting At
JR., being in C
sentencing; ha
of AGGRAVAT
.Iury 'f'rial of
TO COUNT pNi
MURDER, as
MURDER, as
Jury Trial of A
GUILTY by a J
the Indictrnen
contained in
A CRIME VIC
GUILTY by a,
Indictment, w
The Defi
substantial
The sen
IN THE COURT OF COMMON PLEASCOUNTY OF SUMMIT
CONr,,, j^t ^'y4C1 MAY TERM 2006
Za66 -f 11 t 3AN 1^: 1 i Case No. CR 05 08 3007
^ JOURNAL ENTRY
, to-wit: The .I Ith day of July, A.D., 2006, now comes the Assistant
orney on behalf of the State of Ohio, the Defendant, CLARENCE FRY,
urt with counsel, LAWRENCE WHITNEY s.nd ICERRY O'BRIEN, for
ing heretofore on June 14, 2006 been found GUILTY by a Jury Tria.l
D MURDER, as contained in Count I of the indictment, GUILTY by a
e SPECIFICATION ONE TO COUNT ONE and SPECIF'ICATION TWO
of the Indictsnent, GUILTY by a Jury Trial of AGGRAVATED
tained in Count 2 of the lndietment, GUILTY by a Jury Trial of
tained in Count 3 of the indictment, a special felony, GUILTY by a
GRAVATED BURGLARY, as contained in Count 4 of the Indictrnent,
ry Trial of DOMESTIC VIOLENCE, as contained in Counts 5 and 6 of
GUILTY by a Jury Trial of TAMPERING WITH EVIl7'ENCE, as
unt 7 of the Indictrnent, GUILTY by a Jury Trial of INTIMIDATION OF
IM OR WITNESS, as contained in Count 8 of the Indictment, and
Trial of MENACING BY STALKING, as contained in Count 9 of the
ich offenses all occurred after July 1, 1996.
ndant's motion to dismiss the Death Specification is Denied, There is
dence that the jury found justification for the death sentence.
encing hearing commenced on June 26, 2006, the jury made a
recommertdatlon of "DEATH" for the Defendant on Count 1.
Thercu
had anything
and having n
sufficient cau
The Co
aggravating c
penalty wou
on, the Court inquired of the said Defendant and his counsel if they
say why judgment should not be pronounced againet the Defendant;
thing but what they had already said, and showing no good and
e why judgment should not be pronounced:
rt then announced that it fou.nd beyond a reasonabla doubt that the
rcurnstances outweighed the mitigating factors and that the death
be irnposed,
JUL-28-2006 13:44 From:FUDGE CDSGROUE 3306438731 To:2168813928 P.3135
COPY When im osing a sentence in this case for the non-capital counts, the Court
has considered the overriding purposes of felony sentencing, which are to protect the
public from :fu ure crime and to punish the offenders, States vs. Corner, 99 Ohio St.
3d 463, Revise Code Section 2929.].1.(A).
The Cour has considered the need for incapacitating the Defendant and from
deterring the D fendan.t from committing future crime, whether or not the Defendant
can be rehabili ted and the making of reatituttion to the victim, the public, or both,
under R.C. 292 .I 1.in deciding the appropriate sentence,
The Defe dant has a lengthy history of criminal arrests and/or convictions for
violent, heinou , and horrendous crimes. The Defendant has numerous convictiona
which rasulted in prison terms, and has not been rehabilitated to a satisfactory
degroe. He con ' ues to be a violent and extremely selrish individual with no
conscience or e' pathy. He showed no remorse for his crimes, the victim or the
victim's family. The Defendant caused great psychological harm to her family, which
includes young children. It is necessary to punish the Defendant so he cannot
continue corn itting crimes againet women.
The Cou t, pursuant to Section 2941,25(A), Ohio Revised Code, declines to
sentence said efendant on 'the Count 2, Aggravated Murder, Count 3, Murder,
Count 4 Aggra ated Rabbery, Count 5, Domestic Violence. These offenses merge as a
matter of law i to Count 1.
The Cou t also merges the two capital specifications contained in Count I into
a single capitai specifieation.
IT IS TH REFORE ORDERED AND ADJUDGED BY THIS COURT that the
Defendant, C RENCE FRY, JR., for punishment of the crime of AGGRAVATED
MURDER, as t the death Ohio Revised Code Section
2903.01(8), a special felony, the sentence im DEATH.
IT IS FU HE'R ORDEREO that the ]9efendant is to be conveyed by the Sheriff
of Summit Co nty, Ohio, within Five (5) Days to the CORRECTIONAL RECEPTTON
CENTER at Or' nt, Ohio, for immediate transport to the SOUTHERN OHIO
CORRECTION L FACII.ITY at Lucasville, Ohio, and that he be there safely kept until
July 31, 2007, on which day, within an enclosure, inside the walls of said
SOUTI-Ii'aRN O 110 CORRECTIONAL FACILITY, prepared for that purpose, according
to law, the sai Defendant CLARENCE FRY, JR., shall be administered a lethal
injection by th Warden of the said SOUTHERN OHIO COFtRECTIONAL FACILITY, or
in the case of t e Warden's death or inability, or absence, by a Deputy Warden of
JUL-28-2006 13:45 From:UDGE CDSGROVE 3306438731 To:2168813928 P.4/35
COPY
THE STATE OF OHIO
vs.
CLARENCE FRY, JR.(page 3 of 4)
IN THE COURT OF COMMON PLEASCOUNTY OF SUMMIT
MAY TERM 2006
) Case No. CR 05 08 3007)))^ ]OURNAL ENTRY
said Institution that the said Warden or his duly authorized Deputy, shaA
adrninister a le ha1 injection until the Defendant, CLARENCE FRY, JR., is DSAD,
Thereaf r, the Court proceeded with sentencing as to the remaining counts,
the Defendant, CLARENCE FRY, JR., be committed to the OHIO DEPARTMENT OF
REI-IABILITATI
pursuant to O.
crime of DOM
the third (3rd)
term pursuant
the crime of'I:
felony of the
mandatory t
punishm.ent o
Revised Code
term of Eighte
2929,13(F), 2
STALKING, 0
degree, and t
is hereby aw
County Safe
ITISF
Defendant be
commence th
IT IS F
CONSECUTI
CONBECU
N for a definite term of Five (5) years, which is not a mandatory term
C. 2929.13(F), 2929,14('D)(3), or 2925.01, for punishment of the
STIC VIOLENCE, Ohio Revised Code Section 2919.25(A), a felony of
egree, for a definite term of Five (5) years, which is not a mandatory
to O.R.C. 2929.13(F), 2929.14(D)(3), or 2925,01, for punishment of
MPERiNG WITH EVIDENCE, Ohio Revised Code Section 2921,12, a
ird (3^d) degree, for a definite term of Five (5) years, which is not a
pursuant to O.R.C. 2929.13(F), 2929.14(D)(3), or 2925.01, for
the crime of INTIMIDATION OF A CRIME VICTIM OR WITNESS, Ohio
ection 2921.04(B), a felony of the third (31d) degree, and for a definite
n(]S) months, which is not a mandatory term pursuant to O.R.C.
29.14(D)(3), or 2925.01, for punishment of the crime of MENACING BY
io Revised Code Section 2903.211(A), a felony of the fourth (401)
at the Defendant pay the costs of this prosecution for which execution
ed; said monies to be paid to the Summit County Clerk of Courts,
T3uilding, 53 University Avenue, Akron, Ohio 44308.
RTHER ORDERED, pursuant to the above sentence, that the
onveyed to the Correctional Reception Center at Orient, Ohio, to
prison intake procedure.
RTHER ORDERED that the sentences imposed in this case be served
LY and not concurrently with each other, and to be served
LY and not concurrently with Count 1.
JUL-28-2006 13:45 From:JUDGE COSGROVE 3306438731 To:2168813928 P.5/35
COPY The l7efcn ant is to be placed into solitary confinement every July 31 for
twenty-four (24) ours unti! he is executed to contemplate what harm he has done to
the victim of the i ggravated Murder.
If the Defdant is releaaed from prison, the l^efendant is ordered to serve Ten
(10) years of porelease control. Defendant is ORDERED to pay all prosecutions
costs, including ny fees permitted pursuant to O.R.C. 2929.1$(A)(4).
Thereupe the Cour t inforrrted the Defendant of his right to appeal pursuant
to Rule 32A2, Cminal Rules of Procedure, Ohio Supreme Court, and further the
court will appoi defense counsel for purposes of appeal.
APPROVED:July 11, 2006tms 5a; t: ^ ct ( ,.-y
PATRICIA A. COSCiROVE, JudgeCourt of Common PleasSummit County, Ohio
cc: Prosecuto John Mascola/Angela WaUs AlexanderCriminal A signmentAttornt.y L rence WhitneyAttorney K ry O'Bricn8ookinRCourt Conve-YB-ureau of entenca Computation CERxiFLEOSouthern hio Correctional Facility CERTIFfED
LII: Constitution
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United Stdtes ConstitutionBill of Rights
Congress shall maexercise thereof;people peaceably
The right of the peunreasonable searupon probable cauto be searched, an
No person shall bepresentment or inforces, or in the m
e no law respecting an establishment of religion, or prohibiting the freeabridging the freedom of speech, or of the press; or the right of theassemble, and to petition the government for a redress of grievances.
litia, being necessary to the security of a free state, the right of thebear arms, shall not be infringed.
time of peace be quartered in any house, without the consent of theof war, but in a manner to be prescribed by law.
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pie to be secure in their persons, houses, papers, and effects, againsthes and seizures, shall not be violated, and no warrants shall issue, bute, supported by oath or affirmation, and particularly describing the placethe persons or things to be seized.
held to answer for a capital, or otherwise infamous crime, unless on aictment of a grand jury, except in cases arising in the land or navallitia, when in actual service in time of war or public danger; nor shall any
person be subject or the same offense to be twice put in jeopardy of fife or limb; nor shallbe compelled in a y criminal case to be a witness against himself, nor be deprived of life,liberty, or prope , without due process of law; nor shall private property be taken for publicuse, without just c mpensation.
In all criminal prosan impartial jury owhich district shallnature and causehave compulsorycounsel for his def
cutions, the accused shall enjoy the right to a speedy and public trial, bythe state and district wherein the crime shall have been committed,have been previously ascertained by law, and to be informed of thef the accusation; to be confronted with the witnesses against him; torocess for obtaining witnesses in his favor, and to have the assistance ofnse.
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l9`Jr'
LII: Constitution Page 2 of 2
In suits at commo law, where the value in controversy shall exceed twenty dollars, the rightof trial by jury sha I be preserved, and no fact tried by a jury, shall be otherwise reexaminedin any court of the United States, than according to the rules of the common law.
Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusualpunishments inflicted.
Amendment IX
The enumeration i the Constitution, of certain rights, shall not be construed to deny ordisparage others r tained by the people.
Amendment X
The powers not de egated to the United States by the Constitution, nor prohibited by it tothe states, are res rved to the states respectively, or to the people.
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LII: Constitution
IsI / Legal Informat^on Institute
United St6tes Constitution
Section 1. All persthereof, are citizemake or enforce aUnited States; norprocess of law; nolaws.
Section 2. Represrespective numbernot taxed. But whand Vice Presidentjudicial officers ofmale inhabitants oStates, or in anyof representation tcitizens shall bearstate.
Section 3. No persPresident and Vice
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ns born or naturalized in the United States, and subject to the jurisdictions of the United States and of the state wherein they reside. No state shally law which shall abridge the privileges or immunities of citizens of theshall any state deprive any person of life, liberty, or property, without duedeny to any person within its jurisdiction the equal protection of the
ntatives shall be apportioned among the several states according to their, counting the whole number of persons in each state, excluding Indiansn the right to vote at any election for the choice of electors for Presidentof the United States, Representatives in Congress, the executive andstate, or the members of the legislature thereof, is denied to any of thesuch state, being twenty-one years of age, and citizens of the United
ay abridged, except for participation in rebellion, or other crime, the basiserein shall be reduced in the proportion which the number of such maleo the whole number of male citizens twenty-one years of age in such
n shall be a Senator or Representative in Congress, or elector ofPresident, or hold any office, civil or military, under the United States, or
under any state, ho, having previously taken an oath, as a member of Congress, or as anofficer of the Unite States, or as a member of any state legislature, or as an executive orjudicial officer of a iy state, to support the Constitution of the United States, shall haveengaged in insurre ion or rebellion against the same, or given aid or comfort to the enemiesthereof. But Congr ss may by a vote of two-thirds of each House, remove such disability.
Section 4. The vali ity of the public debt of the United States, authorized by law, includingdebts Incurred for ayment of pensions and bounties for services in suppressing insurrectionor rebellion, shall ot be questioned. But neither the United States nor any state shallassume or pay an debt or obligation incurred in aid of insurrection or rebellion against theUnited States, or ny claim for the loss or emancipation of any slave; but all such debts,obligations and claims shall be held illegal and void.
Section 5. The Co^gress shall have power to enforce, by appropriate legislation, theprovisions of this rticle.
• Previous Amedment Next Amendment• Table of Articl s and Amendments• Overview of F II Constitution
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Lawriter - ORC - 2929.0$ Imposition of sentence for aggravated murder. Page 1 of 5
2929.03 Imposition of sentence for aggravated murder.
(A) If the indictment or count in the indictment charging aggravated murder does not contain one ormore specifications of ggravating circumstances listed in division (A) of section 2929.04 of theRevised Code, then, following a verdict of guilty of the charge of aggravated murder, the trial court
shall impose sentence o the offender as follows:
(1) Except as provided i^ division (A)(2) of this section, the trial court shall impose one of the following
sentences on the offend r:
(a) Life imprisonment wi hout parole;
(b) Life imprisonment w th parole eligibility after serving twenty years of imprisonment;
(c) Life imprisonment wi h parole eligibility after serving twenty-five full years of imprisonment;
(d) Life imprisonment w th parole eligibility after serving thirty full years of imprisonment.
(2) If the offender als is convicted of or pleads guilty to a sexual motivation specification and asexually violent predato specification that are included in the indictment, count in the indictment, orinformation that charg d the aggravated murder, the trial court shall impose upon the offender asentence of life impriso ment without parole that shall be served pursuant to section 2971.03 of theRevised Code.
(B) If the indictment o count in the indictment charging aggravated murder contains one or morespecifications of aggra ting circumstances listed in division (A) of section 2929.04 of the RevisedCode, the verdict shall separately state whether the accused is found guilty or not guilty of theprincipal charge and, if uilty of the principal charge, whether the offender was eighteen years of ageor older at the time of he commission of the offense, if the matter of age was raised by the offenderpursuant to section 292 .023 of the Revised Code, and whether the offender is guilty or not guilty ofeach specification. The ury shall be instructed on its duties in this regard. The instruction to the juryshall include an instruct on that a specification shall be proved beyond a reasonable doubt in order tosupport a guilty verdict n the specification, but the instruction shall not mention the penalty that maybe the consequence of a guilty or not guilty verdict on any charge or specification.
(C)(1) If the indictment or count in the indictment charging aggravated murder contains one or morespecifications of aggravating circumstances listed in division (A) of section 2929.04 of the RevisedCode, then, following a erdict of guilty of the charge but not guilty of each of the specifications, and
regardless of whether he offender raised the matter of age pursuant to section 2929.023 of theRevised Code, the trial ourt shall impose sentence on the offender as follows:
(a) Except as providedlin division (C)(1)(b) of this section, the trial court shall impose one of the
following sentences on the offender:
(i) Life imprisonment without parole;
(ii) Life imprisonment w th parole eligibility after serving twenty years of imprisonment;
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(iii) Life imprisonment ith parole eligibility after serving twenty-five full years of imprisonment;
(iv) Life imprisonment with parole eligibility after serving thirty full years of imprisonment.
(b) If the offender als is convicted of or pleads guilty to a sexual motivation specification and asexually violent predator specification that are included in the indictment, count in the indictment, orinformation that charg d the aggravated murder, the trial court shall impose upon the offender a
sentence of life impriso ment without parole that shall be served pursuant to section 2971.03 of theRevised Code.
(2)(a) If the indictment
circumstances listed in
guilty of both the char
offender shall be one of
(i) Except as providedoffender shall be death,serving twenty-five fullthirty full years of impri:
(ii) If the offender alscsexually violent predatoinformation that chargeideath or life imprisonmRevised Code.
(b) A penalty imposedpursuant to divisions (D
(i) By the panel of threby jury;
(ii) By the trial jury and
(D)(1) Death may not b
of age at trial pursuant
been eighteen years of
imposed as a penalty fo
may be imposed as a
sentence investigation I
examination to be madE
submitted to the court,
information provided by
division shall be disclosi
against the defendant
examination shall not bi
under this division shall
or count in the indictment contains one or more specifications of aggravatingivision (A) of section 2929.04 of the Revised Code and if ttie offender is founde and one or more of the specifications, the penalty to be imposed on the:he following:
in division (C)(2)(a)(ii) of this section, the penalty to be imposed on thelife imprisonment without parole, life imprisonment with parole eligibility afterfears of imprisonment, or life imprisonment with parole eligibility after servingonment.
is convicted of or pleads guilty to a sexual motivation specification and ar specification that are included in the indictment, count in the indictment, ori the aggravated murder, the penalty to be imposed on the offender shall beent without parole that shall be served pursuant to section 2971.03 of the
pursuant to division (C)(2)(a)(i) or (ii) of this section shall be determinedand (E) of this section and shall be determined by one of the following:
judges that tried the offender upon the offender's waiver of the right to trial
he trial judge, if the offender was tried by jury.
imposed as a penalty for aggravated murder if the offender raised the matterto section 2929.023 of the Revised Code and was not found at trial to have3ge or older at the time of the commission of the offense. When death may ber aggravated murder, the court shall proceed under this division. When deathpenalty, the court, upon the request of the defendant, shall require a pre-:o be made and, upon the request of the defendant, shall require a mental
and shall require reports of the investigation and of any mental examinationpursuant to section 2947.06 of the Revised Code. No statement made or
a defendant in a mental examination or proceeding conducted pursuant to thisad to any person, except as provided in this division, or be used in evidenceDn the issue of guilt in any retrial. A pre-sentence investigation or mental
made except upon request of the defendant. Copies of any reports preparedbe furnished to the court, to the trial jury if the offender was tried by a jury, to
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the prosecutor, and to tlthe trial jury if the offedivision and furnishedcircumstances the offerimposition of the senternature and circumstancommitting, the mitigatiany other factors in nstatement, if any, of I
prosecution, that are reshall be given great laldivision (B) of sectionimposition of the sentesubject to cross-examiraffirmation.
The defendant shall havthe imposition of the sebeyond a reasonable dicommitting are sufficierdeath.
(2) Upon considerationstatement of the offendEdivision (D)(1) of thiswhether the aggravatinc
e offender or the offender's counsel for use under this division. The court, andrder was tried by a jury, shall consider any report prepared pursuant to this:o it and any evidence raised at trial that is relevant to the aggravatingder was found guilty of committing or to any factors in mitigation of thece of death, shall hear testimony and other evidence that is relevant to the:es of the aggravating circumstances the offender was found guilty ofg factors set forth in division (B) of section 2929.04 of the Revised Code, anditigation of the imposition of the sentence of death, and shall hear thehe offender, and the arguments, if any, of counsel for the defense andevant to the penalty that should be imposed on the offender. The defendantitude in the presentation of evidence of the mitigating factors set forth in?929.04 of the Revised Code and of any other factors in mitigation of thece of death. If the offender chooses to make a statement, the offender is
ation only if the offender consents to make the statement under oath or
the burden of going forward with the evidence of any factors in mitigation ofntence of death. The prosecution shall have the burden of proving, by proofrubt, that the aggravating circumstances the defendant was found guilty oft to outweigh the factors in mitigation of the imposition of the sentence of
of the relevant evidence raised at trial, the testimony, other evidence,r, arguments of counsel, and, if applicable, the reports submitted pursuant toection, the trial jury, if the offender was tried by a jury, shall determinecircumstances the offender was found guilty of committing are sufficient to
outweigh the mitigating factors present in the case. If the trial jury unanimously finds, by proof beyonda reasonable doubt, th t the aggravating circumstances the offender was found guilty of committing
outweigh the mitigating factors, the trial jury shall recommend to the court that the sentence of deathbe imposed on the off nder. Absent such a finding, the jury shall recommend that the offender be
sentenced to one of the ollowing:
(a) Except as provided in division (D)(2)(b) of this section, to life imprisonment without parole, lifeimprisonment with par le eligibility after serving twenty-five full years of imprisonment, or lifeimprisonment with parole eligibility after serving thirty full years of imprisonment;
(b) If the offender alscsexually violent predato
information that chargec
If the trial jury recommimprisonment with parimprisonment with parcimpose the sentence recimprisonment without pserved pursuant to secsentence of death be im
is convicted of or pleads guilty to a sexual motivation specification and aspecification that are included in the indictment, count in the indictment, orthe aggravated murder, to life imprisonment without parole.
ends that the offender be sentenced to life imprisonment without parole, lifeq le eligibility after serving twenty-five full years of imprisonment, or life
e eligibility after serving thirty full years of imprisonment, the court shall
ommended by the jury upon the offender. If the sentence is a sentence of lifearole imposed under division (D)(2)(b) of this section, the sentence shall be
on 2971.03 of the Revised Code. If the trial jury recommends that theposed upon the offender, the court shall proceed to impose sentence pursuant
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to division (D)(3) of thislsection.
(3) Upon considerationstatement of the offendfpursuant to division (D)^the trial jury's recommbeyond a reasonable direasonable doubt, thatoutweigh the mitigatincfinding by the court or poffender:
(a) Except as provided ir
(i) Life imprisonment wit
(ii) Life imprisonment wi
(iii) Life imprisonment w
(b) If the offender alscsexually violent predatoinformation that chargecpursuant to section 297:
(E) If the offender raise
was convicted of aggra,listed in division (A) ofeighteen years of age othree judges shall not iimpose one of the follow
(1) Except as provided i
(a) Life imprisonment w
(b) Life imprisonment w
(c) Life imprisonment wl
(2) If the offender alsi
sexually violent predatc
information that charge
pursuant to section 297
(F) The court or the paropinion its specific findi
of the relevant evidence raised at trial, the testimony, other evidence,!r, arguments of counsel, and, if applicable, the reports submitted to the court;1) of this section, if, after receiving pursuant to division (D)(2) of this sectionendation that the sentence of death be imposed, the court finds, by proof)ubt, or if the panel of three judges unanimously finds, by proof beyond athe aggravating circumstances the offender was found guilty of committingfactors, it shall impose sentence of death on the offender. Absent such a
anel, the court or the panel shall impose one of the following sentences on the
i division (D)(3)(b) of this section, one of the following:
hout parole;
:h parole eligibility after serving twenty-five full years of imprisonment;
th parole eligibility after serving thirty full years of imprisonment.
is convicted of or pleads guilty to a sexual motivation specification and aspecification that are included in the indictment, count in the indictment, orthe aggravated murder, life imprisonment without parole that shall be served
.03 of the Revised Code.
i the matter of age at trial pursuant to section 2929.023 of the Revised Code,rated murder and one or more specifications of an aggravating circumstance;ection 2929.04 of the Revised Code, and was not found at trial to have been- older at the time of the commission of the offense, the court or the panel ofnpose a sentence of death on the offender. Instead, the court or panel shall
ing sentences on the offender:
i division (E)(2) of this section, one of the following:
thout parole;
th parole eligibility after serving twenty-five full years of imprisonment;
th parole eligibility after serving thirty full years of imprisonment.
r is convicted of or pleads guilty to a sexual motivation specification and ar specification that are included in the indictment, count in the indictment, ori the aggravated murder, life imprisonment without parole that shall be served
1.03 of the Revised Code.
el of three judges, when it imposes sentence of death, shall state in a separateigs as to the existence of any of the mitigating factors set forth in division (B)
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of section 2929.04 of th Revised Code, the existence of any other mitigating factors, the aggravatingcircumstances the offe der was found guilty of committing, and the reasons why the aggravatingcircumstances the offen er was found guilty of committing were sufficient to outweigh the mitigatingfactors. The court or pa el, when it imposes life imprisonment under division (D) of this section, shallstate in a separate opinion its specific findings of which of the mitigating factors set forth in division(B) of section 2929.04 f the Revised Code it found to exist, what other mitigating factors it found toexist, what aggravating circumstances the offender was found guilty of committing, and why it couldnot find that these agg avating circumstances were sufficient to outweigh the mitigating factors. Forcases in which a senten e of death is imposed for an offense committed before January 1, 1995, thecourt or panel shall fil the opinion required to be prepared by this division with the clerk of theappropriate court of app als and with the clerk of the supreme court within fifteen days after the courtor panel imposes sent nce. For cases in which a sentence of death is imposed for an offensecommitted on or after J nuary 1, 1995, the court or panel shall file the opinion required to be preparedby this division with the clerk of the supreme court within fifteen days after the court or panel imposessentence. The judgment in a case in which a sentencing hearing is held pursuant to this section is notfinal until the opinion is iled.
(G)(1) Whenever the acommitted before Janwdeliver the entire record
(2) Whenever the coui
committed on or after J
deliver the entire record
Effective Date: 01-01-1
urt or a panel of three judges imposes a sentence of death for an offense
ry 1, 1995, the clerk of the court in which the judgment is rendered shallin the case to the appellate court.
: or a panel of three judges imposes a sentence of death for an offensenuary 1, 1995, the clerk of the court in which the judgment is rendered shallin the case to the supreme court.
97; 03-23-2005
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Lawriter - ORC - 2929.04Death penalty or imprisonment - aggravating and mitigating fa... Page 1 of 3
2929.04 Deat^ penalty or imprisonment - aggravatingand mitigatin factors.
(A) Imposition of the d ath penalty for aggravated murder is precluded unless one or more of the
following is specified in the indictment or count in the indictment pursuant to section 2941.14 of the
Revised Code and prove beyond a reasonable doubt:
(1) The offense was th assassination of the president of the United States or a person in line ofsuccession to the presidency, the governor or lieutenant governor of this state, the president-elect orvice president-elect of t e United States, the governor-elect or lieutenant governor-elect of this state,or a candidate for any o the offices described in this division. For purposes of this division, a person isa candidate if the pers n has been nominated for election according to law, if the person has filed apetition or petitions acc rding to law to have the person's name placed on the ballot in a primary orgeneral election, or if th person campaigns as a write-in candidate in a primary or general election.
(2) The offense was con}mitted for hire.
(3) The offense waspunishment for another
(4) The offense was coilarge after having brok
same meaning as in s ehospitalization, instituticdevelopmentally disable
ommitted for the purpose of escaping detection, apprehension, trial, or>ffense committed by the offender.
nmitted while the offender was under detention or while the offender was at_n detention. As used in division (A)(4) of this section, "detention" has thection 2921.01 of the Revised Code, except that detention does not includenalization, or confinement in a mental health facility or mental retardation andd facility unless at the time of the commission of the offense either of the
following circumstances lapply:
(a) The offender was iRevised Code.
(b) The offender was urof a section of the Revis
(5) Prior to the offensewas the purposeful killiconduct involving the p
(6) The victim of the cRevised Code, whom tFofficer as so defined, an
the facility as a result of being charged with a violation of a section of the
der detention as a result of being convicted of or pleading guilty to a violation
^d Code.
3t bar, the offender was convicted of an offense an essential element of whichg of or attempt to kill another, or the offense at bar was part of a course ofrposeful killing of or attempt to kill two or more persons by the offender.
ffense was a law enforcement officer, as defined in section 2911.01 of thee offender had reasonable cause to know or knew to be a law enforcementi either the victim, at the time of the commission of the offense, was engaged
in the victim's duties, or it was the offender's specific purpose to kill a law enforcement officer as so
defined.
(7) The offense was co mitted while the offender was committing, attempting to commit, or fleeingimmediately after co mitting or attempting to commit kidnapping, rape, aggravated arson,
aggravated robbery, or aggravated burglary, and either the offender was the principal offender in the
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commission of the agg^avated murder or, if not the principal offender, committed the aggravatedmurder with prior calcul tion and design.
(8) The victim of the a gravated murder was a witness to an offense who was purposely killed toprevent the victim's t stimony in any criminal proceeding and the aggravated murder was notcommitted during the c mmission, attempted commission, or flight immediately after the commission
or attempted commissi n of the offense to which the victim was a witness, or the victim of theaggravated murder was a witness to an offense and was purposely killed in retaliation for the victim'stestimony in any crimin I proceeding.
(9) The offender, in the commission of the offense, purposefully caused the death of another who wasunder thirteen years of ge at the time of the commission of the offense, and either the offender wasthe principal offender in the commission of the offense or, if not the principal offender, committed the
offense with prior calcul tion and design.
(10) The offense was c mmitted while the offender was committing, attempting to commit, or fleeingimmediately after committing or attempting to commit terrorism.
(B) If one or more of th aggravating circumstances listed in division (A) of this section is specified in
the indictment or count in the indictment and proved beyond a reasonable doubt, and if the offenderdid not raise the matte of age pursuant to section 2929.023 of the Revised Code or if the offender,after raising the matter of age, was found at trial to have been eighteen years of age or older at thetime of the commission f the offense, the court, trial jury, or panel of three judges shall consider, andweigh against the agg avating circumstances proved beyond a reasonable doubt, the nature andcircumstances of the o ense, the history, character, and background of the offender, and all of thefollowing factors:
(1) Whether the victim Of the offense induced or facilitated it;
(2) Whether it is unlikly that the offense would have been committed, but for the fact that theoffender was under dur ss, coercion, or strong provocation;
(3) Whether, at the ti e of committing the offense, the offender, because of a mental disease ordefect, lacked substanti I capacity to appreciate the criminality of the offender's conduct or to conform
the offender's conduct t the requirements of the law;
(4) The youth of the offonder;
(5) The offender's la^k of a significant history of prior criminal convictions and delinquency
adjudications;
(6) If the offender was a participant in the offense but not the principal offender, the degree of theoffender's participation in the offense and the degree of the offender's participation in the acts that led
to the death of the victi ;
(7) Any other factors tfhat are relevant to the issue of whether the offender should be sentenced to
death.
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(C) The defendant shall be given great latitude in the presentation of evidence of the factors listed indivision (B) of this sect on and of any other factors in mitigation of the imposition of the sentence of
death.
The existence of any of he mitigating factors listed in division (B) of this section does not preclude theimposition of a sentenc of death on the offender but shall be weighed pursuant to divisions (D)(2) and(3) of section 2929.03 f the Revised Code by the trial court, trial jury, or the panel of three judgesagainst the aggravating circumstances the offender was found guilty of committing.
Effective Date: 05-15-2 0 02
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Lawriter - ORC - 2929.0
2929.05 Supof death.
(A) Whenever sentence
Code, the court of apl
committed before Janui
death at the same timf
Supreme court review upon appeal of sentence of death. Page 1 of 2
me court review upon appeal of sentence
of death is imposed pursuant to sections 2929.03 and 2929.04 of the Revisedeals, in a case in which a sentence of death was imposed for an offensery 1, 1995, and the supreme court shall review upon appeal the sentence ofthat they review the other issues in the case. The court of appeals and the
supreme court shall review the judgment in the case and the sentence of death imposed by the courtor panel of three judge
shall review and indepecase and consider the ithe offender was foundthe sentence of death iscourt of appeals, in a caJanuary 1, 1995, anddisproportionate to theother evidence to detertrial jury or the panelwhether the sentencingguilty of committing an^death was imposed for ;a sentence of death or
s in the same manner that they review other criminal cases, except that they
idently weigh all of the facts and other evidence disclosed in the record in theffense and the offender to determine whether the aggravating circumstancesguilty of committing outweigh the mitigating factors in the case, and whether
appropriate. In determining whether the sentence of death is appropriate, these in which a sentence of death was imposed for an offense committed beforethe supreme court shall consider whether the sentence is excessive orpenalty imposed in similar cases. They also shall review all of the facts andnine if the evidence supports the finding of the aggravating circumstances therf three judges found the offender guilty of committing, and shall determine
court properly weighed the aggravating circumstances the offender was foundI the mitigating factors. The court of appeals, in a case in which a sentence ofn offense committed before January 1, 1995, or the supreme court shall affirm
ly if the particular court is persuaded from the record that the aggravatingcircumstances the offe^der was found guilty of committing outweigh the mitigating factors present inthe case and that the s ntence of death is the appropriate sentence in the case.
A court of appeals tha reviews a case in which the sentence of death is imposed for an offensecommitted before Janu ry 1, 1995, shall file a separate opinion as to its findings in the case with theclerk of the supreme c urt. The opinion shall be filed within fifteen days after the court issues itsopinion and shall contai whatever information is required by the clerk of the supreme court.
(B) The court of appeal , in a case in which a sentence of death was imposed for an offense committedbefore January 1, 1995 and the supreme court shall give priority over all other cases to the review ofjudgments in which the sentence of death is imposed and, except as otherwise provided in this section,shall conduct the revie in accordance with the Rules of Appellate Procedure.
(C) At any time after a sentence of death is imposed pursuant to section 2929.022 or 2929.03 of theRevised Code, the cou of common pleas that sentenced the offender shall vacate the sentence if theoffender did not presen evidence at trial that the offender was not eighteen years of age or older atthe time of the commis ion of the aggravated murder for which the offender was sentenced and if theoffender shows by a pr ponderance of the evidence that the offender was less than eighteen years ofage at the time of the commission of the aggravated murder for which the offender was sentenced.The court is not require to hold a hearing on a motion filed pursuant to this division unless the courtfinds, based on the otion and any supporting information submitted by the defendant, anyinformation submitted y the prosecuting attorney, and the record in the case, including any previoushearings and orders, p obable cause to believe that the defendant was not eighteen years of age orolder at the time of the commission of the aggravated murder for which the defendant was sentenced
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to death.
Effective Date: 07-29-1 98
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Lawriter - ORC - 2941.2$ Allied offenses of similar import - multiple counts. Page 1 of I
2941.25 Alliecounts.
(A) Where the same coiof similar import, the idefendant may be convi
(B) Where the defendanconduct results in two cseparate animus as to (and the defendant may I
offenses of similar import - multiple
duct by defendant can be construed to constitute two or more allied offensesidictment or information may contain counts for all such offenses, but the
ted of only one.
t's conduct constitutes two or more offenses of dissimilar import, or where his)r more offenses of the same or similar kind committed separately or with a^ach, the indictment or information may contain counts for all such offenses,)e convicted of all of them.
Effective Date: 01-01-1974
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Lawrnter - UKU - 2945.^V Yroot ot detendant's motive. Yage 1 of 1
2945.59 Proof of defendant's motive.
In any criminal case in hich the defendant's motive or intent, the absence of mistake or accident onhis part, or the defen ant's scheme, plan, or system in doing an act is material, any acts of thedefendant which tend t show his motive or intent, the absence of mistake or accident on his part, or
the defendant's scheme plan, or system in doing the act in question may be proved, whether they arecontemporaneous with r prior or subsequent thereto, notwithstanding that such proof may show ortend to show the comm ssion of another crime by the defendant.
Effective Date: 10-01-1 53
http://codes.ohio.gov/orq2945.59 6/3/2007
ABA Guidetines for ^e Appointment and Performance of Defense Counsel in Death Penalty Cases • February 2003
Guideline 5.1 I Qualifications of Defense Counsel
A. The Resp nsible Agency should develop and publish qualification standards fordefense co nsel in capital cases. These standards should be construed and applied insuch a wa as to further the overriding goal of providing each client with high qualitylegalrepr sentation.
B. In formul ting qualification standards, the Responsible Agency should insure:
1. Th t every attorney representing a capital defendant has:
a. obtained a license or permission to practice in the jurisdiction;
b. demonstrated a commitment to providing zealous advocacy and highquality legal representation in the defense of capital cases; and
c. satisfied the training requirements set forth in Guideline 8.1.
2. Th t the pool of defense attorneys as a whole is such that each capitaldef ndant within the jurisdiction receives high quality legal representation.Ac rdingly, the qualification standards should insure that the pool includessu cient numbers of attorneys who have demonstrated:
a.
b.
c.
d.
e.
f.
g•
h.
substantial knowledge and understanding of the relevant state, federaland international law, both procedural and substantive, governingcapital cases;
skill in the management and conduct of complex negotiations andlitigation;
skill in legal research, analysis, and the drafting of litigationdocuments;
skill in oral advocacy;
skill in the use of expert witnesses and familiarity with common areasof forensic investigation, including fingerprints, ballistics, forensicpathology, and DNA evidence;
skill in the investigation, preparation, and presentation of evidencebearing upon mental status;
skill in the investigation, preparation, and presentation of mitigatingevidence; and
skill in the elements of trial advocacy, such as jury selection, cross-examination of witnesses, and opening and closing statements.
35
A -/a
ABA Guidelines for t^e Appointment and Performanca of Defense Counsel in Death Penalty Cases • Februery 2003
Guideline 10.8 The Duty to Assert Legal Claims
A. Counsel at every stage of the case, exercising professional judgment in accordancewith these uidelines, should:
1. con ider all legal claims potentially available; and
2. tho^oughly investigate the basis for each potential claim before reaching acon lusion as to whether it should be asserted; and
3. evaluate each potential claim in light of:
a. the unique characteristics of death penalty law and practice; and
b. the near certainty that all available avenues of post-conviction reliefwill be pursued in the event of conviction and imposition of a deathsentence; and
c. the importance of protecting the client's rights against later contentionsby the government that the claim has been waived, defaulted, notexhausted, or otherwise forfeited; and
d. any other professionally appropriate costs and benefits to the assertionof the claim.
B. Counsel w o decide to assert a particular legal claim should:
1. pre ent the claim as forcefully as possible, tailoring the presentation to thepa icular facts and circumstances in the client's case and the applicable lawin t e particular jurisdiction; and
2. enst^re that a full record is made of all legal proceedings in connection with theclat .
C. Counsel at Il stages of the case should keep under consideration the possibleadvantages to the client of:
1. asse ting legal claims whose basis has only recently become known oravai able to counsel; and
2. sup^lementing claims previously made with additional factual or legalinfo mation.
History of Guidelif{e
This Guidel ne is based on Guideline 11.5.1 (The Decision to File Pretrial Motions) andGuideline 11.7.3 ( bjection to Error and Preservation of Issues for Post Judgment Review) of theoriginal edition. N w language makes clear that the obligations imposed by this Guideline exist atevery stage of the p oceeding and extend to procedural vehicles other than the submission of
86
Evid R 402irrelev
All relevant eviced bv the Constittof the State of Ohnot in conflict witErules, or by other iEvidence which is
Relevant evidence generally admissibfe;nt evidence inadmissible
lence is admissible, except as otherwise provid-ition of the United States, by the Constitutionio, by statute enacted by the General Assemblva rule of the Supreme Court of Ohio. by these
-ules prescribed by the Supreme Court of Ohio.not relevant is not admissible.
(Adopted eff. 7-1-$0)
RULE 4 3. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, orUndue D lay
(A) Excl sion mandatorv. Although relevant, evidence is not admissible if its probative valueis substa tially outweighed by the danger of unfair prejudice, of confusion of the issues, or ofmisleadi g the jury.
(B) Excl sion discretionary. Although relevant, evidence may be excluded if its probativevalue is s bstantially outweighed by considerations of undue delay, or needless presentation ofcumulatWe evidence.
[Effectivo: July I. 1980; amended effective July 1, 1996.]
Evid 9 404 Character evidence not admissible toprove conduct; exceptions; other crimes
(A) Cha acter evidence generally
Eviden e of a person's character or a trait of his character isnot adm ssible for the purpose of proving that he acted inconformi y therewith on a particular occasion, subject to thefollowing exceptions:
(1) Cft racter of accused. Evidence of a pertinent trait of hischaractc offered by an accused, or by the prosecution to rebutthe same is admissibte: however, in prosecutions for rape, grosssexual i position, and prostitution, the exceptions provided bystatute e acted by the General Assembly are applicable.
(2) Character o_f r•ictim. Evidence of a pertinent trait of charac-ter of th- victim of the crime offered by an accused. or by theprosecuti n to rebut the same, or evidence of a character trait ofpeaceful ess of the victim offered by the prosecution in a homi-cide case to rebut evidence that the victim was the first aggressoris admis ible: however, in prosecutions for rape. gross sexualimpositi n, and prostitution, the exceptions provided by statuteenacted v the General Assemblv are applicable.
(3) C aracter of witness. Evidence of the character of a witnesson the is ue of credibilitv is admissible as provided in Rules 607,608, and 609.
(B) Oth r crimes, wrongs or acts
Evide ce of other crimes, wrongs, or acts is not admissible toprove th character of a person in order to show that he acted inconformity therewith. [tlnav, however, be admissible for otherpurposes such as proof of motive, opportunity, intent. prepara-tion, pta , knowledQe, identity, or absence of mistake or accident.
R'16
Evid R 803 ^claran
The followingthough the declar
Hearsay exceptions; availability of de-
t immaterial
are not excluded by the hearsay rule, even4nt is available as a witness:
(1) Present se>fiplaining an evenperceivinty the eunless circumstan
(2) Excited ut
se impression. A statemrnt descrihing or cx-t or condition made while the declarant was^ent or condition, or immediatelv thereafteres indicate lack of trustworthiness.
erance. A statement relating to astartlinymade while the declarant was under the stressevent or condition
of excitement cau sed hv the event or condition.
RULES OF S
SectionSup R 20 Appointment of cou
Sup
Sup
capital cases-courts of coiR 21 Appointment of co
capital cases-courts of apR 22 Verification of indig
Sup R 20 Appointment o'dants in capital casi
I. APPLICABILITY(A) This rule shall apply in cas
has been charged with aggravatiincludes one or more specificatiolisted in R.C. 2929.04(A). This rjuvenile defendant is indicted forhis or her age, cannot be sentenci
(B) The provisions for the apfthis rule applv only in cases whecounsel is not privately retained f
(C) If the defendant is entitleithe court shall appoint two attcrule. If the defendant engagesthe court shall not appoint a sirule-
(D) The provisions of this ruking requirements created by seCode.
IL QUALIFICATIONS FORFOR INDIGENT DEFENDANT
(A) Trial Counsel
(1) At least two attorneys srepresent an indigent defendder and the indictment incluaggravating circumstances listone of the appointed counOhio and have experience
The counsel appointed shall"co-counsel."
(2) Lead counsel shall satisfy
(a) Be admitted to the practpractice pro hac vice;
(b) Have at least five yearsappellate experience;
(c) Have specialized traininion subjects that will assist ccaccused of capital crimes in thapplication;
(d) Have at least one of the
(i) Experience as "lead coutcapital case;
(ii) Experience as "co-couicapital cases; _
(e) Have at.least one of the
PERINTENDENCE FOR THE COURTS OF OHIO(Selected Provisions)
isel for indigent defendants inmon pleasrsel of indigent defendants in-alncy
(i) Experience as "lead counsel" in the jury trial of at least onemurder or aggravated murder case;
(ii) Experience as "lead counsel" in ten or more criminal orcivil jury trials, at least three of which were felony jury trials;
(iii) Experience as "lead counsel" in either: three murder oraggravated murder jury trials; one murder or aggravated murderjury trial and three felony jury trials; or three aggravated or first-
counsel for indigent defen- or second-degree felony jury trials in a court of common pleas ins-courts of common pleas
es where an indigent defendanted murder and the indictmentns of aggravating circumstances.tle shall apply in cases where aa capital offense, but because ofd to death.
ntment of counsel set forth inthe defendant is indigent and
or for the defendant.y
I to the appointment of counsel,rneys certified pursuant to thisone privately retained attorney,cond attorney pursuant to this
the three years prior to making application.
(3) Co-counsel shall satisfy all of the following:
(a) Be admitted to the practice of law in Ohio or admitted topractice pro hac vice;
(b) Have at least three years of civil or criminal litigation orappellate experience;
(c) Have specialized training, as approved by the committee,on subjects that will assist counsel in the defense of personsaccused of capital crimes in the two years prior to makingapplication;
(d) Have at least one of the following qualifications:
(i) Experience as "co-counsel" in one murder or aggravatedmurder trial;
(ii) Experience as "lead counsel" in one first-degree felonyjury trial;
apply in addition to the report- (iii) Experience as "lead" or "cocounsel" in at least twoction 2929.021 of the Revised felony jury or civil jury trials in a court of common pleas in the
ERTIFICATION AS COUNSELIN CAPITAL CASES
all be appointed by the court tont charged with aggravated mur-es one or more specifications ofd in R.C. 2929.04(A). At least
.l must maintain a law office inin Ohio criminal trial practice.
)e designated "lead counsel" and
all of the following:
three years prior to making application.
(4) As used in this rule, "trial" means a case concluded with ajudgment of acquittal under Criminal Rule 29 or submission tothe trial court or jury for decision and verdict.
(B) Appellate Counsef.
(1) At least two attorneys shall be appointed by the court toappeal cases where the trial court has imposed the death penaltyon an indigent defendant. At least one of the appointed counselshall maintain a law office in Ohio.
(2) Appellate counsel shall satisfy all of the following:
(a) Be admitted to the practice of law in Ohio or admitted topractice pro hac vice;
(b) Have at least three years of civil or criminal litieation orce of law in Ohio or admitted to appellate experience;
of civil or criminal litigation or
;, as approved by the committee,unsel in the defense of persons
two-year period prior to making
ollowing qualifications:
el" in the jury trial of at least one
el" in the trial of at least two
following qualifications:
(c) Have specialized training, as approved by the Committee,on subjects that will assist counsel in the defense of personsaccused of capital crimes in the two years prior to makingapplication;
(d) Have specialized training, as approved by the Committee.on subjects that will assist counsel in the appeal of cases in whichthe death penalty was imposed in the two years prior to makingapplication;
(e) Have experience as counsel in the appeal of at least threefelony convictions in the three years prior to making appllcation.
(C) Exceptional Circumstances. If an attorttey does not satisfythe requirements of divisions (A)(2), (A)(3), or (B)(2) of thissecflon, the attorne,v may be cert^ed as lead counsel, co-counsel,or appellate counsel if it can bedemonstrated to the satisfaction
1521
r
Aa - /f9
tcute cu
of the Committee that competent 4epresentation will be providedto the defendant. In so determini g, the Contmittec may consid-er the following:
(a) Specialized training on subj cts that will assist counsel inthe trial or appeal of cases in whiq^h the death penalty may be orwas imposed;
(b) Experience in the trial or a peal of criminal or civil cases;
(c) Experience in the investigat on, preparation, and litiqationof capital cases that were resolved rior to trial;
(d) Any other relevant consider tions.
(D) Savings Clause. Attorneys c rtified by the Committee priorto January 1, 1991 may maintain heir certification bv complyingwith the requirements of Section II of this rule, notwithstandingthe requirements of Sections II( )(2)(d), II(A)(3)(b) and (d),and II(B)(2)(d) as amended effect ve January 1, 1991.
POINTMENT OF COUNSELIII. COMMITTEE ON THE AI^FOR INDIGENT DEFENDANTS N CAPITAL CASES
(A) There shall be a Committee on the Appointment of Counselfor Indigent Defendants in Capital
(B) Appointment of Committeebe composed of five attorneys.ed by a majority vote of all meOhio; one shall be appointed byand one shall be appointed bymission.
ases.
Members. The Committee shallee members shall be appoint-
bers of the Supreme Court ofhe Ohio State Bar Association;e Ohio Public Defender Com-
(C) Eligibility for Appointmentof the Committee shall satisfv al
(1) Be admitted to the practic
o the Committee. Each memberof the following qualifications:
of ]aw in Ohio;
(2) Have represented criminal defendants for not less than fiveyears;
(3) Demonstrate a knowledgcapital cases;
of the law and practice of
(4) Currently not serving as prosecuting attorney, city di-rector of law, village solicitor, or similar officer or their asci.stantor employee, or an employee of nv court.
(D) Overall Composition. The verall composition of the Com-mittee shall meet both of the foll wing criteria:
(1) No more than two me bers shall reside in the samccounty;
a judge.(2) No more than one shall b
(E) Terms; Vacancies. The t rm of office for each memberbeginning on the first day ofshall be five years, each [erm
Januarv. Members shall be eli 'blc for reappointment. Vacan-anner as original appointments.cies shall be filled in the same
Any member appointed to fill vacancy occurring prior to theexpiration of a term shall hold office for the remainder of theterm.
(F) Election of Chair. Thc C mmittee shall elect a chair andsuch other officers as are neces ary. The officers shall serve fortwo years and may be reelected o additional terms.
(G) Powers and Duties of the Committee The Committee shalldo all of the £ollowing:
(1) Prepare and notify attorn ys of procedures for applying forcertification to be appointed c unset for indigent defendants incapital cases;
mmon pleas and appellate court(2) Periodically provide alljudges and the Ohio Public D ender with a list of all attorneyswho are certified to be appo' ted counsel for indigent capitaldefendants;
(3) Periodically review the hst of certified counsel, all courtappointments given to attorne s in capital cases, and the resultand status of those cases;
(4) Develop criteria and procedures for rclentinn of certifica-tion including, but not limiled ut mandaton continuing Icgzleducation on the defense and appeal of capital cases;
(5) Expand, reduce. or otherwiu modify the lisl of certifiedattorneys as appropriate and necessary in accord with division(G)(4) of this section:
(6) Review and approve specialized training programs on sub-jects that will assist counsel in the defcnse and appcal. of capitalcases;
(7) Recommend to the Supreme Court of Ohio amendmentsto this rule or anv other rule or statute relative to the defense orappeal of capital cases.
(H) Meetings. The Committee shall meet at the call of thechair. at the request of a majority of the members. or at therequest of the Supreme Court of Ohio. A quorum consists ofthree members. A majoritv of the Committee is necessary forthe Committee to elect a chair and take any other action.
(1) Compensation. All m:mbers of [he Committee shall receiveequal compensation in an amount to be establishcd by theSupreme Court of Ohio.
IV. PROCEDURES FOR COURT APPOINTMENTS OFCOUNSEL
(A) Appointing counsel. Only counsel who have been certificdby the Committee shall be appointed to represent indieent defen-dants charged with aggravated murder and the indictment in-cludes one or more specifications of aggravating circumstanceslisted in R.C. 2929.04(A). Each eourt may adopt local rulesestablishing qualifications in addition to and not in conflict withthose established by this rule- Appointments of counsel for thesecascs should be distributed as widely as possible among thecertified attorneys in the jurisdiction of the appointing court.
(B) Workload of Appointed Counsel.
(1) In appointing counsel, the court shall consider the natureand volume of the workload of the prospective counsel to ensurethat counsel, if appointed, could direct sufficient attention to thedefense of the case and provide competent representation to thedefendant.
(2) Attorneys accepting appointments shall provide each clicntwith competent representation in accordance with constitutionaland professional standards. Appointed counsel shall not acceptworkloads that, by reason of their excessive size, interfere withthc rendering of competent representation or lead to the breachof professional obligations.
(C) Notice m the Committee.
(1) Within two weeks of appointment, the appointing courtshall notify the Committee secretary of the appointment on aform prescribed by the committee. The notice shall include all ofthe following:
(a) The court and thejudge assigned to the case;
(b) The case name and number;
(c) A copy of the indictment;
(d) The names, business addresses, telephone numbers, andSup.R. 20 certification of all attorneys appointed;
(e) Any other infonnation considered relevant by the Commibtee or appointing court.
(2) Within two weeks of disposition, the trial court shall notifythe Committee secretary of the disposition of the case on a formprescribed by the Committee. The notice shall include all of thefollowing:
(a) The outcome of the case;
(b) The title and section of the Revised Code of any crimes towhich the defendant pleaded or was found guilty;
1523
(c) The date of dismissal,imposed;
(d) The sentence, if any;
(e) A copy of the judgment
(f) If the death penalty wappointed to represent the de^
(g) Any other information 9tee or trial court.
(D) Suppon Services. Thepointed counsel, as required ^tion, federal statutes, and progator, mitigation specialists, ^forensic experts and other sor appropriate for counselquate defense at every stagelimited to, determinations re(not guilty by reason of insanwitnesses called by the pros^tion, and preparation for an9in the sentencing phase of ttq
V, MONITORING; REMq
. (A) The appointing cour,assigned counsel to ensure ttent representation. If thecourt, trial or appellate,responsibilities of providin^prejudice to the defendantother action it may takeCommittee, which shall acqheard.
(B) Complaints concersigned in the trials or ap^cases shall be reviewed bysions of Section III(G)(3),
VL PROGRAMS FOR SI
(A) Programs for Spec^sons Charged With a Capi
(1) To be approved b^seminar shall include inpreparation, and presenta
(2) The curriculum forshould include, but is nofollowing areas:
(a) An overview of illitigation;
(b) Death penalty voir
(c) Trial phase presenI
(d) Use of experts in
J
(e) lnves[igation, pCet
+(f) Preservalion of thd(g) Counsel's relatioi
family;
(h) Death penalty astate and federal courts
(B) Programs for Spin Which the Death Pet
(1) To be approvedseminar shall include iin whieh the death pen
(2) The curriculumIseminar should includ4in the following areas:
SUPERINTENDENCE RULES Rule 20
acquittal, or that sentence was (a) An overview of current developments in death penalty law;
(b) Completion, correction, and supplementation of the recordon appeal;
ntry reflecting the above;
imposed, the name of counselndant on appeal.
onsidered relevant by the Cornmit-
ppointing court shall provide ap-
y Ohio law or the federal Constitu-'essional standards, with the investi-ental health professional, and otherpport services reasonably necessaryprepare for and present an ade-
f the proceedings including, but notevant to competency to stand trial, aty plea, cross-examination of expertcution, disposition following convic-presentation of mitigating evidencetrial.
should monitor theperformancc ofat the defendant is receiving compe-
is compelling evidence before anvhat an attorney has ienored basiccompetent counsel, which results incase, [he court, in addition to anyshall report this evidence to the
rd the attorney an opportunity to be
ing the performance of attorne,vs as-als of indigent defendants in capital
the Committee pursuant to the provi-4), and (5) of this mle.
ECIALIZED TRAINING
lized Training in the Defense of Per-al Offense.
the Committee, a death penalty trialruction devoted to the investigation,on of a death penalty trial.
an approved death penalty trial seminart limited to, specialized training in the
urrent developments in death penalty
dire;
ation;
he trial and penalry phase:
aration, and presentation.of mitigation;
record;
ship with the accused and the accused's
cialized Training in the Appeal of Casesalry has been Imposed.
y the Committee, a death penalty appealstruction devoted to the appeal of a casety ha.s been imposed.
for an approved death penaltv appealbut is not limited to, specialized training
(c) Reviewing the record for unique death penalty issues;
(d) Motion practice for death penalty appeals;
(e) Preservation and presentation of constitutional issues;
(f) Preparing and presenting oral argument;
(g) Unique aspects of death penalty practice in the courts ofappeals, the Supreme Court of Ohio, and the United StatesSupreme Court;
(h) The relationship of counsel with the appellant and theappellant's family during the course of the appeals.
(i) Procedure and practice in collateral litigation, extraordinaryremedies, state post-conviction litigation, and federal habeas cor-pus litigation.
(C) The sponsor of a death penalty seminar shall apply forapproval from the Committee at least sixty days before the dateof the proposed seminar. An application for approval shallinclude the curriculum for the seminar and include biographicalinformation of each member of the seminar faculty.
(D) The Committee shall obtain a list of attendees from theSupreme Court Commission on Continuing Legal Education thatshall be used to verify attendance at and grant Sup.R. 20 creditfor each Committee-approved seminar. Credit for purposes ofthis rule shall be granted to instructors using the same ratioprovided in Rule X of the Supreme Court Rules for the Govern-ment of the Bar of Ohio.
(E) The Committee may accredit programs other than thoseapproved pursuant to divisions (A) and (B) of this section. Toreceive accreditation, the program shall include instructions in allareas set forth in divisions (A) and (B) of this section. Applica-tion for accreditation of an in-state program may be made by theprogram sponeor or a program attendee and shall be made priorto the program. Application for accreditation of an out-of-stateprogram may be submitted by the program sponsor or a programattendee and may be made prior to or after completion of theprogram. The request for credit from a program sponsor shallinclude the program curriculum and individual faculty biographi-cal information. The request for credit from a program attendeeshall include alI of the following:
(1) Program curriculum:
(2) Individual faculty biographical information;
(3) A written breakdown of sessions attended and credit hoursreceived if the seminar held concurrent sessions;
(4) Proof of attendance.
VII. STANDARDS FOR RETENTION OF SUP.R. 20 CERTIFI-CATION
(A)(1) To retain certification, an attorney who has previouslybeen certified by the Committee shall complete at least twelvehours of Committee-approved specialized trainineeverv twoyears. To maintain certification as lead counsel or co-counsel, atleast six of the twelve hours shall be devoted to instruction in thetrial of capital cases. To maintain certification as appellatecounsel, at least six of the twelve hours shall be devoted toinstruction in the appeal of capital cases.
(2) On the first day of July of each year, the Committee shallreview the list of certified counsel and revoke the certification ofany attornev who has not complied with the specialized trainingrequirements of this rule. An attorney whose certification hasbeen revoked shall not be eligible to accept future appointmentas counsel for an indigent defendant charged with or convicted ofan offensc for which the death penalty can be or has beenimposed.
I
Rule 20
dit an out-of-state program that(B) The Committee may acerdevoted to the investigaNon,provides specialized instructiona death penalty trial or special-preparation, and presentation oappeal of a case in which theized instruction devoted to the
both. Requests fordefendant received the death enalty, orcredit for an out-of-state pro ram bee sureqbmitted by the
tendeemay
. Thuest for creditseminar sponsor or, a seminarnclude the program curriculumfrom a program sponsor shall1 information. The request forand individualfaculty biographi
shall include all of the following:credit from a program attendee
(1) Program curriculum;
(2) Individual facultybiograp ical information;
(3) A written breakdown of s ssions attended and credit hoursreceived if the seminar held con urrent sessions;
(4) Proof of attendance.
(C) An attomey who has pr viousiy been certified but whosecertification has been revoke for failure to comply with thespecialized training requireme ts of this nde must, in order toregain certification, submit a ew application that demonstratesthat the attomey has com ed twelve hours of Committeepl
in the two year period prior toapproved specialized trainingation,making application for recertifi
VIII. RESERVED
IX. EPPECTIVE DATE
(A) The effective date of thi
(B) The amendments to Seand to the Subcommittee CoRule adopted by the Supremshall be effective on July 1, 19
(C) The amendments to Seand the addition of SectioSupreme Court of Ohio on Don January 1, 1991.
(D) The amendments toCourt of Ohio on April 19, 19
(E) The amendment to SCourt on December 4, 2002,
(F) The amendment to SCourt on Febmary 1, 2005,
(Adopted eff. 10-1-87; amen6-03; 3-7-05)
SUPER1NTb:NUN;NCB RUt.hS
mle shall be October 1, 1987.
ion II(A)(5)(b), Section III(B)(2),ments following Section II of thisCourt of Ohio on June 28, 1989,
9.
tions I(A)(2), I(A)(3),1(B), and II,I(C) and IV, adopted by the
cember 11, 1990, shall be effective
is rule adopted by the Supreme5, shall take effect on July 1, 1995.
. R. 20 adopted by the Supremeall take effect on January 6, 2003.
R. 20 adopted by the Supremehall take effect on March 7, 2005.
d eff. 7-1-89; 1-1-91; 7-1-95; 1-
Sup R 21 Appointme t of counsel of indigent defen-dants in capital ses-conrts of appeal
(A) Applicability
This rule shall apply in a als of cases where the trial courthas imposed the death pen ty on an indigent defendant. Theappointment of counsel an notice requirements shall be inaccordance with this rule an Sup.R. 20.
(B) Procedures for Court A pointments of Counsel
(1) Appointing Counsel. 0 ly attorneys who have been certifiedas appellate counsel pursua t to Sup.R. 20 shall be appointed asappellate counsel where th trial court has imposed the deathpenalty on an indigent def ndant. Each appellate court mayadopt local rules establishin qualifications in addition to and not
in conflict with those established by Sup.R. 20. Appointments ofcounsel for these cases should be distributed as widely as possibleamong the certified attorneys in the jurisdiction of the appointingcourt.
(2) Workload of Appointed CounseL In appointing counsel, thecourt shall consider the nature and volume of the workload of theprospective counsel to ensure that counsel, if appointed, candirect sufficient attention to the appeal of the case and providecompetent representation to the defendant. Attorneys acceptingappointments shall provide each client with competent represen-tation in accordance with constitutional and professional stan-dards. Appointed counsel shall not accept workloads that, byreason of their ex<:essive size, interfere with the rendering ofcompetent representation or lead to the breach of professionalobligations.
(C) Notice of the Appointment of Counsel
Within two weeks of appointment, the appellate court shallnotify the Committee secretary of the appointment of appellatecounsel on a form prescribed by the Committee. If appellatecounsel are appointed by the trial court, the notice is notrequired. The notice shall include all of the following:
(1) The case name and number;
(2) The names, business addresses, telephone numbers, andcertificatfon pursuant to Sup.R. 20 of counsel appointed torepresent the defendant on appeal;
(3) Any other information considered relevant by the Commit-tee or appointing court.
(D) Notice of Disposition of the Appeal
Within two weeks of disposition of the appeal, the appellatecourt shall notify the Committee secretary of the disposition ofthe appeal on a form prescribed by the Committee. The noticeshall include all of the following:
(1) The case name and number;
(2) The names, business addresses, telephone numbers, andcertification pursuant to Sup.R. 20 of counsel who representedthe defendant on appeal;
(3) The disposition of the appeal;
(4) If the death sentence was affirmed, the names, addresses,telephone numben, and certification pursuant to Sup.R. 20 ofcounsel who were appointed to represent the defendant onappeal to the Supreme Court of Ohio;
(5) Any other informationconsidered relevant by the Commit-tee or appellate court.
(Adopted eff. 7-1-97)
Sup R 22 Verification of indigency
Where required by law to appoint counsel to represent indigentdefendants in cases for which the county will apply to the OhioPublic Defender Commission for reimbursement of costs, thecourt shall require the applicant to complete the financial disclo-sure form. The court shall follow rules promulgated by theCommission pursuant to division (B)(1) of section 120.03 of theRevised Code as guidelines to determine indigency and standardsof indigency.
(Adopted 7-1-97)