2019 Ohio 3545
Ohio Ct. App.2019Background
- On June 10–11, 2017 Kevin Remillard shot and killed Nick Remillard; a revolver discharged twice, one bullet struck Nick in the head; Nick's body was dragged from the house and concealed in the backyard pool.
- Appellant surrendered days later after disassembling the revolver and discarding parts; an eight‑page note (Exhibit 7) found in his bedroom admitted to shooting Nick and described suicidal ideation and voices.
- State charged Kevin with murder (R.C. 2903.02(A)) with a firearm specification and tampering with evidence; the case proceeded to jury trial where mens rea (purposeful vs. reckless/accidental) was the central disputed issue.
- The deputies entered the house without a warrant after a neighbor found Appellant’s property and a troubling note and reported concern Appellant might be suicidal and armed; officers found Exhibit 7 in plain view upstairs and later seized it.
- Jury convicted Appellant of murder and tampering; he was sentenced to 15 years–to‑life plus consecutive firearm specification and an additional consecutive term for tampering.
- Appellant appealed raising multiple claims: ineffective assistance (failure to move to suppress Exhibit 7; failure to object to jury instructions; failure to request diminished‑capacity instruction), erroneous omission of an “accident” jury instruction, exclusion/admission and reliability of Exhibit 7, consecutive sentences, due‑process challenges, and cumulative error.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Remillard) | Held |
|---|---|---|---|
| Warrantless entry/seizure of Exhibit 7 | Entry was justified by exigent circumstances (suicide/weapon concern); note was in plain view and seizure lawful | Entry/seizure exceeded scope of emergency and Exhibit 7 should be suppressed | Entry and seizure were lawful under exigent‑circumstances/plain‑view; suppression motion would likely fail; counsel not ineffective for not moving to suppress |
| Ineffective assistance for failing to object to jury instructions (lesser included/murder definition) | Instructions as read conveyed correct burdens; any minor wording slip not prejudicial | Counsel should have objected to wording and erroneous reference to "bodily harm" in murder instruction | No deficiency or prejudice shown; counsel’s choices were reasonable trial strategy; instruction error not materially misleading |
| Failure to give accident/diminished‑capacity instruction | No evidentiary basis for diminished capacity; accident instruction not required by the record | Appellant testified the gun unexpectedly discharged and asked for an accident instruction; diminished capacity instruction also warranted given Exhibit 7 | Trial court did not err in declining accident and diminished‑capacity instructions; failure preserved or analyzed under plain error and found not to have affected substantial rights |
| Consecutive sentences | Sentencing court made required statutory findings under R.C. 2929.14(C)(4) and concluded consecutive terms necessary and not disproportionate | Appellant argued consecutive terms unsupported, given criminal history and firearm spec justified concurrent terms | Court properly applied statutory criteria and made findings; consecutive sentences affirmed |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (standard for ineffective assistance of counsel)
- Kimmelman v. Morrison, 477 U.S. 365 (failure to file suppression motion not per se ineffective; defendant must show probable success and prejudice)
- Terry v. Ohio, 392 U.S. 1 (scope of police intrusion must be reasonable in light of circumstances)
- Coolidge v. New Hampshire, 403 U.S. 443 (plain‑view doctrine principles)
- State v. Mowbray, 72 Ohio App.3d 243 (Ohio plain‑view seizure analysis)
- State v. Rogers, 143 Ohio St.3d 385 (plain‑error review requires reasonable probability of prejudice)