State v. Diggle, 2012 Ohio 1583

In Feb 2010, Diggle fought Casad at Casad’s home; Casad reported Diggle to police and Diggle ceased visiting.
On Sept 8, 2010, Diggle beat Casad and robbed him of about $750 after leaving the Friendly Tavern; Diggle drove away in a white Cadillac.
Casad sustained severe injuries (epidural hematoma) requiring craniotomy; he was transported to a hospital for treatment.
Casad died about a day later from complications after the surgery; the coroner ruled the death a homicide caused by blunt force trauma.
Diggle was indicted on felonious assault, aggravated robbery, and two counts of murder; after a jury trial he was convicted on all four counts.
At sentencing (July 2011), the court merged murder one with felonious assault as allied offenses and sentenced Diggle to 15-to-life for murder and 10 years for aggravated robbery, for a total of 25-to-life plus a $2,500 fine; murder count three was treated as an alternative.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Are murder and aggravated robbery allied offenses under Johnson v. State?	Diggle argues the offenses share the same conduct and animus and should merge.	State maintains separate animus exists; not allied.	Not allied; separate animus shown; offenses do not merge.
Whether Casad’s out-of-court statements to first responders were testimonial under Crawford/Davis/Michigan v. Bryant.	Casad’s statements were testimonial and violated Confrontation Clause.	Statements were non-testimonial under ongoing emergency exception.	Not testimonial; even if arguable, error harmless beyond doubt.
Did trial counsel render ineffective assistance by opening the door to excluded testimony?	Counsel’s cross-examination opened the door to previously excluded evidence.	Evidence was cumulative and not prejudicial.	No reversible prejudice; assignment rejected.

State v. Stall, 2011-Ohio-5733 (Ohio Ct. App. 3rd Dist. (2011)) (allied-offenses framework under Johnson remains applicable)
State v. Brown, 2011-Ohio-1461 (Ohio 3d Dist. 2011) (Johnson framework refinement for allied offenses)
State v. Johnson, 128 Ohio St.3d 153 (2010-Ohio-6314) (modified analysis for allied offenses under R.C. 2941.25)
State v. Irbey, 2011-Ohio-2079 (6th Dist. 2011) (conduct and animus considerations under Johnson; separate animus possible)
State v. Tibbs, 2011-Ohio-6716 (1st Dist. 2011) (separate-animus approach in murder vs. aggravated robbery)
State v. Guiterrez, 2011-Ohio-3126 (3d Dist. 2011) (Confrontation Clause review de novo)
Crawford v. Washington, 541 U.S. 36 (2004) (testimonial statements require confrontation)
Davis v. Washington, 547 U.S. 813 (2006) (applies ongoing-emergency vs. testimonial framework)
Michigan v. Bryant, 131 S. Ct. 1143 (2011) (multifactor test for testimonial statements; primary purpose and freshness of emergency)
Crawford v. Washington (state)**, — (—) (reference for context (Confrontation Clause))