2020 Ohio 5549
Ohio Ct. App.2020Background
- Two separate murders in Lucas County: A.D. (found dead in his trailer July 2015) and T.M. (found dead in an apartment fire November 2015). Lowery lived in the same trailer park as A.D. and was linked circumstantially to both scenes.
- Key physical evidence: black winter gloves recovered near A.D.’s jeep tested (using Globalfiler) and identified DNA consistent with Lowery; victims’ property was recovered scattered in a wooded area near property Lowery admitted having hidden; witnesses (notably Stacy Groll) saw Lowery in possession of items matching A.D.’s and at T.M.’s apartment the night of T.M.’s death.
- Lowery made several statements to police (including a 2:25 a.m. selfie timestamp) and gave inconsistent accounts; asked his mother to retrieve items later found with victims’ property.
- Lowery was convicted of multiple counts (aggravated murder, murder, aggravated robbery, aggravated burglary, aggravated arson, receiving stolen property) and sentenced to two consecutive life terms without parole.
- On appeal Lowery raised seven assignments of error: (1) improper joinder/severance; (2) Miranda/Fifth- and Sixth-Amendment violation for counsel requests; (3) Evid.R. 702/Daubert challenge to BCI Globalfiler retest; (4) ineffective assistance for failing to object to that evidence; (5) sufficiency and manifest weight; (6) merger of aggravated robbery and aggravated burglary (A.D.); (7) merger of aggravated robbery and murder (both victims).
- The Sixth District affirms the convictions and sentences in all respects.
Issues
| Issue | State's Argument | Lowery's Argument | Held |
|---|---|---|---|
| Joinder / Severance of two murder trials | Crimes part of a common scheme/modus operandi (proximity, method, stolen property found together); evidence for each was distinct and orderly | Joinder prejudiced Lowery; overlapping testimony would lead jury to aggregate proof and convict on cumulative evidence | Denied: trial court did not abuse discretion; 404(B) modus-operandi and joinder tests satisfied; evidence simple, direct, and presented orderly |
| Miranda / invocation of counsel (March 2016 & July 2017 interviews) | Interrogations were valid; Lowery’s statements were ambiguous until he unambiguously requested counsel and questioning ceased | Police continued despite request for counsel; alleged Fifth- and Sixth-Amendment violations | Denied: request for counsel must be unambiguous; Lowery’s early remarks were ambiguous; later unequivocal request ended questioning; Sixth-Amendment counsel for unrelated burglary did not bar questioning on uncharged offenses |
| Admissibility of BCI Globalfiler retest (Evid.R.702 / Daubert) | BCI analyst qualified; retest/review met Evid.R.702 criteria; reliability goes to weight not admissibility | Globalfiler reliability challenged (cites other court decisions); retest was reexamination of electronic data, not independent testing | Denied (plain-error review): expert met Evid.R.702 requirements; admission not plain error; any reliability concerns go to weight for jury |
| Ineffective assistance for failing to object to DNA evidence | Admission was proper, so failure to object was not deficient or prejudicial | Trial counsel should have objected to Globalfiler report and retest method | Denied: counsel’s performance presumptively reasonable; objecting was not clearly meritorious and would not likely change outcome |
| Sufficiency and manifest weight of evidence | Circumstantial and direct evidence (DNA, witness ID, possession of items, phone/selfie, property found with Lowery’s) established elements beyond reasonable doubt | Evidence was inconsistent and largely circumstantial; alternate explanations exist | Denied: evidence (including linkage of stolen property and forensic evidence) sufficient; jury did not lose its way — convictions not against manifest weight |
| Merger / allied-offenses (aggravated robbery vs aggravated burglary; robbery vs murder) | Offenses caused distinct harms or were committed with separate conduct/animus (bludgeoning then stabbing; killing separate from theft) | Offenses arise from same conduct and should merge under R.C. 2941.25 | Denied (plain-error review): court concluded separate conduct/animus (different acts/timing and distinct harms) so convictions need not merge |
Key Cases Cited
- State v. Schaim, 65 Ohio St.3d 51 (1992) (joinder and severance framework and standards)
- State v. Torres, 66 Ohio St.2d 340 (1981) (joinder rationale and tests)
- Davis v. United States, 512 U.S. 452 (1994) (suspect must unambiguously request counsel to invoke Edwards protections)
- Edwards v. Arizona, 451 U.S. 477 (1981) (custodial interrogation must stop after clear request for counsel)
- Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) (federal standard for expert/scientific reliability — referenced in Evid.R.702 analysis)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-part ineffective-assistance-of-counsel test)
- State v. Ruff, 143 Ohio St.3d 114 (2015) (Ohio law on allied offenses and merger analysis)
- State v. Lang, 129 Ohio St.3d 512 (2011) (DNA evidence reliability and weight considerations)