State v. Short, 2011 Ohio 3641

Background

Duane Short was convicted by a jury of the aggravated murders of Rhonda Short and Donnie Sweeney and was sentenced to death on all counts.
The killings occurred on July 22, 2004 in Huber Heights, Ohio, after Rhonda had left Short and moved to Pepper Drive with their children.
Short conducted a premeditated preparation: obtaining Rhonda's new address via the power company records, mapping Pepper Drive, buying a shotgun and hacksaw, and traveling with his son Justin to execute the plan.
Rhonda and Sweeney were shot in the chest; Rhonda died later from a shotgun wound, and Sweeney died at the scene; both killings occurred within minutes of each other at the same location and with the same firearm.
Pretrial and trial evidence showed Short had threatened to kill Rhonda if she left, and communicated intentions to kill both Rhonda and Sweeney after she left.
The trial court conducted an independent review of the death sentence and affirmed the judgments of conviction and the death sentence, merging the Rhonda Short counts and imposing death on the remaining counts.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Waiver of mitigation; Ashworth participation	Short waived mitigation; Ashworth inquiry required when waiver of all mitigation occurs.	Waiver did not require Ashworth because some mitigation was presented during guilt; Roe not controlling for capital cases.	Ashworth inquiry not required; waiver valid where guilt-phase mitigation exists.
Waiver of mitigation; right to judge-alone mitigation hearing	Capital defendant entitled to mitigation hearing before judge after jury recommends death.	Roe does not apply to capital sentencing; Crim.R. 32 and Crim.R. 32(A)(1) grants allocution, not a second evidentiary hearing.	No right to separate judge-alone mitigation hearing; Roe not overruled; allocations do not create new evidentiary rights.
Pretrial access to witnesses; alleged interference by Victim Witness Division	Defense was improperly barred from interviewing minor witnesses by state actors.	State interference violated due process and denied defense access to witnesses.	No proof of state interference; hearing conducted; defense failed to show prejudice from lack of interviews.
Eighth Amendment; post-penalty mitigation presentation	Defendant had a right to present mitigation to the judge after penalty phase if not presented to jury.	Eighth Amendment requires opportunity to present mitigation to the judge after jury penalty phase if withheld from jury.	Eighth Amendment not violated; defendant had opportunity to present mitigation during penalty phase; no second opportunity required.

Key Cases Cited

State v. Keith, 79 Ohio St.3d 514 (1997) (right to mitigation not a fundamental right; no on-record waiver required)
Schriro v. Landrigan, 550 U.S. 465 (2007) (no informed and knowing waiver requirement for mitigation in capital cases)
State v. Barton, 108 Ohio St.3d 402 (2006) (any mitigation presented during guilt/penalty phases can relieve Ashworth duty)
State v. Roe, 41 Ohio St.3d 18 (1989) (no right to post-jury mitigation hearing in capital cases under prior statute)
State v. Reynolds, 80 Ohio St.3d 670 (1998) (allocution permits mitigation information; not a broad right to post-trial hearings)
State v. Campbell, 90 Ohio St.3d 320 (2000) (allocution and mitigation disclosure standards in sentencing)
State v. Mink, 101 Ohio St.3d 350 (2004) (death-penalty scheme not racially discriminatory; international-law concerns rejected)
State v. Jenkins, 15 Ohio St.3d 164 (1984) (constitutional challenges to death penalty provisions rejected)
State v. Steffen, 31 Ohio St.3d 111 (1987) (eighth-amendment considerations in capital cases and proportionality)
State v. Zuern, 32 Ohio St.3d 56 (1987) (capital-sentencing framework and proportionality review)
State v. O’Neal, 87 Ohio St.3d 402 (2000) (double murder and murder during burglary discussed in proportionality review)