*1 10 Appellant. Appellee, Jones, v. Ohio,
The
State
[Cite as
convicted unanimously that he murder of Susan Yates and recommended be rape The trial that recommendation and sentenced accepted to death. court sentenced accordingly. Jones reasons, affirm Jones’s convictions and sentence of following For the
death.
Background History Facts and Procedural murder, charged aggravated with one count of one count of Jones murder, rape. and two counts of charged aggravated 1 with the murder of Yates while Count a death-penalty specification The count included for commit-
committing rape. commit, immediately or or ting, fleeing committing attempt- after attempting and that in the ing rape principal commit Jones was offender commission 2929.04(A)(7). murder, Count 2 Jones with the aggravated charged R.C. charged murder 4 Jones with All four counts rape.1 of Yates. Counts repeat as a violent offender. specifications charging included guilty, proceeded and the case to trial. pled case-in-chief The state’s investigation The criminal was jogging At around 6:20 a.m. on Richard April Wisneski path Cemetery County usual on the Mount Peace Summit paved through route jury vaginal referred to and Count referred to The trial court instructed that Count 3 rape anal rape. when he body. body discovered woman’s on the lying up ground face path next to the front of some ran headstones. Wisneski out of the *2 motorist, cemetery. unsuccessfully After a ran attempting flag down Wisneski to a McDonald’s restaurant and called 9-1-1. Police officers arrived at cemetery shortly quickly the thereafter and
{¶ 7} woman, Yates, determined that the later identified as Susan Marie Christian dead. wearing vest, Yates was a brown sundress under denim skirt and jacket, bra, denim and a bra. Her skirt was torn. So was her which had been at ripped fabric connecting cups between the and was turned around on her shoes, hat, torso. Her a denim and a on pocketknife ground near her body. small, Yates’s face and neck had numerous bruises. A plastic, glow-in-the dark cross had been placed right eye. over her police The searched evidence, the scene and collected two including
{¶ 8} buttons that found they on the roadway, and feet from that body, appeared to match buttons on Yates’s dress. One of earrings Yates’s was also recovered from roadway. police were not able to immediately identify Yates
{¶ 9} because she did any not have identification on her and none of the recognized officers her. Later day, same Yates was identified through fingerprints, her but her name was not released to the media. day, The next an April article in the Akron Beacon Journal newspaper reported that body of an unnamed woman had been found in the cemetery. Around 4:00 p.m. day, Jones was watching the news on television
and reading Afterwards, the newspaper. wife, Delores, he and his had a conversation about the thereafter, news. Shortly the couple walked to a nearby store, and Jones bought cigarettes. home, some Upon returning got Delores car her and friend, drove to the home of her Charletta Jeffries. Delores at arrived Jeffries’s home between p.m. 4:30 and 5:00 p.m.
Delores ran up screamed, Jeffries’s it, stairs and “He did it.” did Jeffries asked, “He, who?” and replied, “My husband, Delores asked, Phil.” Jeffries then “Did what?” and responded, Delores “Murdered the woman.” Jeffries then asked, “What woman?” and replied, Delores they “The woman that found cemetery.” Delores then called the police, told them that she had information about
the woman found at the cemetery, and asked to speak “somebody in charge.” call, Shortly phone after the Detective Richard Morrison arrived at Jeffries’s home. Delores was hyperventilating acting “hysterical.” Morrison Delores, asked you “Do you have something need to tell me?” replied, Delores “My husband is the one that killed that girl cemetery.” Morrison then said, me her name he told and Delores “Because
asked, know this?” you “How do Isn’t it Susan?” was Susan. 22 at around April she arrived home on Delores disclosed to determine Jones’s there. Delores unable and Jones was not p.m.,
10:30 mother. 7:00 8:00 whereabouts, night with her Between spent and she in bed. asleep found She home and morning, Delores returned next lip. had a on shoulder noticed that Jones scratch April department police During questioning further said that eye. Yates’s Delores she the cross found over Morrison showed Delores officers Delores to police accompanied it. recognize evening, did not Later jewelry going home, clothing her box before where she collected shelter. domestic-violence *3 glow-in-the- that she found a notified April police On Delores
{¶ 16} found at the and that similar the cross jewelry dark in her box it was cross her the cross that Jones had given glow-in-the-dark Delores testified cemetery. glow-in-the-dark another cross kept 2006 and that she knew June his wallet. interview, the Akron on the information learned from Delores’s Based
{¶ 17} Thereafter, police the a “be on lookout” Jones. Department Police issued an arrest warrant for Jones. secured
The arrest driving near his p.m. April police spotted At around 11:00 on {¶ 18} at station that briefly police arrested him. was interviewed home and I’m an only, say stated about this is was night going and “[A]ll accident.” swabbings ear and took from the Investigators examined Jones’s
{¶ 19} no evidence that the victim had Subsequent testing interior of the vehicle. found car. ever been
The autopsy County, George The chief medical examiner for Summit Ster- deputy {¶ 20} M.D., Dr. benz, conducted on Sterbenz noted abrasions on autopsy Yates. chest, bones, neck, jaw bruising collar and line. Yates had around her upper feet, arms, and right scalp legs, and smaller abrasions over her back. eye and * * * Dr. “blows abrasions all over the neck also noted that the caused Sterbenz “gouging” and bones and There were or jaw and over collar shoulders.” neck, thumb, Petechiae, and elbow. or “fingernail type right abrasions” on eyes. on her face and in her Yates’s type hemorrhages,” found “pinpoint thyroid larynx places: hyoid cartilage. fractured in two bone and the by from asphyxia strangulation. Dr. Sterbenz concluded Yates died {¶ 21} body He that Yates dead for to 12 hours was found. opined had been before her sexually Dr. Sterbenz also that Yates had been assaulted. concluded injuries, fatty There vaginal including bruising were extensive muscu- lar that form wall of such deep vagina. opined injuries tissues He * * * may large foreign object.” have been caused “a fist or He very rigid vagina. also found a wadded Kleenex or inside toilet-type paper Yates’s internal, There was also a significant deep bruising amount to the anus and rectum. Dr. long rigid object likely Sterbenz stated that a caused injuries these from the object’s having violently “placed been into the anus” and “jammed into A up twig the rectum.” found in material also the fecal inside the rectum about four to six inches from opening. the anal A toxicology screen detected the presence cocaine alcohol. Yates’s blood-serum level of alcohol was .096 percent. evidence forensic Evidence collected the criminal investigation the autopsy testing
was sent for to the Ohio Bureau of Criminal and Investiga- Identification (“BCI”). tion Laux, Dale charge examining forensic scientist BCI in samples to fluids,
identify body found on sperm vaginal swabs taken from Yates. He sperm detected found on stains the inside Yates’s skirt. No seminal *4 fluid was detected on the rectal paper swabs or on tissue found near the body. Laux samples forwarded the positive sperm Stacy tested for to
{¶ 27} Violi, BCI, a concluded, DNA examiner at for DNA testing. Violi “Phillip Jones cannot be excluded as a vaginal source semen on cuttings swabs аnd from testified, the skirt.” Violi “Based on the national database provided by the Federal of Investigation, Bureau the expected frequency of occurrence of the profile DNA in identified fraction of sperm vaginal swabs and the cuttings * * * sextillion, from the skirt is one three thirteen quintillion unrelated In words, individuals.” other Violi explained that she to would have test more than three sextillion individuals before finding profile. the same DNA The world’s population is less than billion people. seven Violi also tested swabs obtained from the surface of Yates’s breast.
{¶ 28} Violi profile concluded DNA from the breast a “[t]he swabs is mixture of at least two major profile individuals. The DNA is from an unknown male. The minor DNA profile consistent contributions from Yates.” Violi Susan also cross, tested the but find enough did not DNA to make a comparison.
14 acts evidence
Other rape. He was attempted to counts of guilty had two pled Jones years years. served to 15 Jones prison to an indefinite term four sentenced July being before released prison and two months assault, at time of the victim, T.J., old years A had been who that on assault. recalled trial about She capital at Jones’s testified sister, requested Jones, friend of T.J.’s older 16,1990, who evening April to look for T.J.’s on a drive him some his friends T.J. and accompany marijuana. Ultimately, dropped to some attempt buy and to sister park. near a a wooded area homes but drove T.J. to others off their off, fight to close T.J. As T.J. tried and himself pulled car stopped the car choking opened her. T.J. around her neck and started his hands put body half fell out. and of her door T.J., side, forced took hold of the car from the driver’s Jones exited tried hill continued to choke T.J. into a wooded area. Jones up
her back, her, on the her while he threatened beat her clothing remove anally her. attempted rape A police got Jones’s car. officer police parked A car arrived and behind over put the area. Jones hand shining lights the car and started around
out of kill her said throat if she mouth and a hand on her and threatened T.J.’s drove anally. police her After the officer attempted rape He then anything. her. vaginally raped his car and choked and Jones took T.J. back to away, if Afterwards, anyone would kill her she told Jones told T.J. that he her off around the dropped He drove her home and what he done. then what her family happened; from T.J. ran home and told her corner her house. took T.J. and then police. police called the arrived interviewed sister her to the treatment. hospital appeal, at issue in this the state the trial for the crimes During records, hospitаl at the
introduced medical which reflect treatment T.J.’s judgment entry reflecting well as the certified after the sexual assault against for the crimes T.J. Jones’s convictions
Defense case *5 in his own behalf. Jones testified {¶ 35} Jones testimony, testimony. At outset of he addressed T.J.’s the his
{¶ 36} they that that had first met T.J. around November 1989. Jones said stated several, times” the Jones maybe rape. had sex least four before had “[a]t in the the basis of the 1990 park sexual intercourse formed claimed the had consensual. conviction been said he and Jones never choked T.J. could not have done so because he
{¶ 37} arm, has in mobility right limited which he had asserted been shattered late 1989 and led to surgical had the removal the radius bone. testified that may raped Jones T.J. have claimed that she was because
{¶ 38} he had told her that he was not to going girlfriend, Christy leave his Harmel. Nevertheless, explained why Jones he had to two pled guilty attempted counts that, rape: my plea the I understanding agreement, granted “[I]t would be super probation shock within 18 to two But it work years. months didn’t out that way.” then Jones testified about his with Yates. relationship Jones stated that February Yates,
he first met Yates in or early March 2007. Jones taken who homeless, work; was then to shower, his house while his wife was at her he let eat, March, and cigarettes. take some late at Jones saw Yates a McDonald’s restaurant gave money buy and her some food. At around 8:45 on p.m. April driving Jones was on Balch Street in hitting
Akron and saw man a woman on the sidewalk. Jones stopped assist woman, was defending recognized who herself with a knife. Jones woman as Yates. up fight Jones broke and Yates get told his car. man “tussling,” Jones and the alleged punched and Jones the man and scratched Jones. The man then fled the scene. the car making Jones returned to to find Yates a “primo” cigarette by
inserting into a cigarette. crack cocaine nicotine stated Yates appeared “kind of battered” from fight, and her skirt was ripped. She did not have a Yates purse. smoked the and she more cigarette said wanted cocaine. Jones drove Yates apartment Snodgrass Deitra because he thought know Snodgrass might selling someone who was crack. Yates apartment arrived at the and had a with short conversation but Snodgrass, left apartment any Thereafter, without crack. bought Jones and Yates crack from a man on a street purchased corner. Jones also some beer and wine at a beer, market. drive-through Jones testified that he had drank one and Yates rest. Jones and Yates togo decided to Mount Peace Cemetery avoid the at
police and arrived 9:00 or 9:30 p.m. Jones had worked as a groundskeeper the cemetery, and his father had been previous buried there the June. Yates three prepared “primo” cigarettes more them. smoked
spread blanket the ground, they got on it and started kissing street, then hugging. Yates urinated wiped herself tissue that she had in’ pocket, roadway and then left the tissue on cemetery. *6 vaginal to intercourse have Jones, he and Yates decided to According
{¶ 45} not that Yates was He testified wearing a condom. while he and did so and the dress she was her skirt pulled up she had and that wearing underwear anal intercourse and did not have they testified that Jones wearing underneath. anal area. not to Yates’s anything did do he “rough” to sex. him she wanted have that Yates told Jones testified {¶ 46} throat and around her Jones, put him to his hands Yates told According around her placed one hand orgasm. as she neared Jones breathing restrain her At “heard like a point, some he vaginal intercourse. they engaged throat while not realized Yates was crack, or sound.” Jones popping sound cracking that the condom had with her and then noticed having He sex moving. stopped Yates but was unsuccessful. try used CPR to revive purportedly He broken. dead, he panicked he because “had that Yates Once Jones realized and underneath Yates partially his blanket —which was rape case.” He retrieved trunk, left the in the put on blanket partially tangled Yates’s neck— home; arrived Delores was p.m., 10:30 or 10:45 Jones home. cemetery. Around aup had fight. her that he had been out and broken he told finding article newspaper police read a about April On Jones p.m., 4:00 Jones had a conversa- Cemetery. Peace Around dead woman Mount buy nearby then walked to a store to tion Delores. Jones and Delores home, house, did not know Delores left the but Jones cigarettes. returning After she went. where sister, Yolanda, They her home. then contacted his drove Jones Later that
talked, police night. to turn himself and Jones decided to see if Delores had returned home. The back to his house evening, Jones drove him. police then arrested stopped said, “I “an that Yates’s death was accident.” Jones Jones testified * * * far, testified that applied pressure.” too too much Jones
guess [I] went And Yates’s he denied ever eye. he not the cross that was found over did leave jewelry in her box. the cross that wife had found seeing cross-examination, and told presented the state life-size doll During direct, he which he Yates as had testified strangled Jones to demonstrate how injuries to that he did not cause the attempted to do. testified explanation twig no for the found Yates’s face neck and that Yates’s have injuries, say guy” might that “some other except or her anal rectum them. caused left because he cemetery after he notify police Jones did
{¶ Yates. stated that intentionally killing him of they would accuse thought cemetery he threw his used condom onto the in the and also left ground some beer cans. *7 Deitra testified on said that and a Snodgrass Jones’s behalf. She Jones 53}
{¶ tall, apartment during slender African-American woman came to her the spring Snodgrass wearing long, “full-length” 2007. testified the woman was split denim skirt that was either or on the side. The woman had bruises ripped face, on her and her had Snodgrass face swollen. a short conversation with them, they and left. cross-examination, During Snodgrass conceded that she did not come
{¶ 54} brother, Wayne,” ap- forward until Jones’s whom she referred as “Uncle proached approximately week took one before she the witness stand and told testify. might Snodgrass day her that she need conceded that the she before testified, short, she told detective that the woman’s denim skirt not long.
Rebuttal Dr. refuted testimony. using Sterbenz After the demonstrative 55} {¶ death, doll to confirm Jones’s version of Yates’s Dr. explained ways Sterbenz in which the physical testimony. evidence contradicted Jones’s Terrence Hudnall Detective testified that the found no police wine bottle 56}
{¶ no cemetery. beer cans in the A used condom was found 100 yards about from the body, but it was not broken.
The verdict and sentence jury found guilty Jones of all counts and specifications. Jones was sentenced to death for the aggravated murder of Yates. He was 20 sentenced to years in prison for the two rape convictions. The court also sentenced Jones to years 10 for the prison repeat-violent-offender specifications in 4 Counts 3 and they other, ordered that be concurrently served with each but consecutively 4, to the sentence imposed Counts 3 and for a years. total 30 here, In his appeal presents Jones ten an propositions law in effort to reverse his turn convictions. We now to those claims.
Analysis Jury selection death-scrupled jurors. VI, Excusal of proposition In of law argues that the trial improperly jurors court excused two for prospective cause who were unequivocally opposed to the death penalty. A juror may be for if capital punishment excused cause his views on prevent
“would or substantially impair performance juror of his as a duties 18 Texas, 45, 38, U.S. v. 448 his oath.” Adams instructions and with his
accordance Bethel, 416, (1980); 2006- v. 110 Ohio St.3d 2521, 581 Stаte 65 L.Ed.2d S.Ct. ¶ for challenge resolution of a A trial court’s Ohio-4853, 854 N.E.2d testimony. is substantial long supported as it appeal on so upheld cause will be (1972). Wilson, 280 N.E.2d Ohio St.2d Pan juror Prospective by excusing its discretion the trial court abused First, argues Pan not have been excused should juror Pan. claims prospective voir dire during cause, jury questionnaire his he had indicated on because impose penalty. could the death juror on contradictory questionnaire his fact, Pan answers provided doubt, “If death there no questionnaire, voir dire. Pan wrote *8 stated, mean, find Pan “I questioning, initial dire OK!” voir penalty During is criminal, penalty.” for the death would be guilty, was penalty his views on death responses But Pan about his changed life parole Pan indicated that he favored without continued. questioning that he understand- explained problems Pan penalty. rather than the death his terminology initially expressed when he legal and ing questions some of the Nevertheless, vote Pan indicated that he could penalty. views about the death however, After questioning, in additional for the death some situations. penalty penalty. against imposing he be the death Pan stated that would and trial excused Pan for cause stated: objection, the court Over defense problem language Pan has a real thought I Doctor diametrically opposite his here understanding, clearly not clear that he did but was questionnaire, what he had written his * * * thereon he taking place, what was based understand be that he could find a verdict for would having the maximum excused said prison. “ somewhat fact counsel was able elicit ‘The that defense * * * not, in his does jurors during from examination contradictory viewpoints ” Beuke, v. 38 Ohio itself, judgment erroneous.’
and of
render the court’s
Scott,
(1988),
26 Ohio St.3d
29, 38,
quoting
State v.
526 N.E.2d
St.3d
(1986). Moreover,
to determine
responsibility
it is the trial court’s
Prospective Powell Second, trial argues court its abused discretion 67} {¶ excusing prospective juror Powell. claims that Powell should have excused, been because stated that he for could vote the death under penalty certain circumstances. dire, During voir Powell stated that he would have a “real problem” 68}
{¶ voting for death penalty. Powell stated that only would be if exceptiоn individual, “there was a videotape confession were they caught red- * * * handed they requested that they put death, [o]r be spend rather than their life in prison.” stated, Powell imagine “I can’t I could take that step, especially knowing maybe years five from they now come up with law says we are not going to do that [impose punishment] capital anymore.” objection, Over defense Powell was excused cause. expressed Powell severe doubts about ability impose death
sentence required by Instead, when expressed law. Powell his willingness to impose penalty the death only circumstances, under very narrow none of which present Thus, this case. court trial did not its abuse discretion excusing juror. this Because the record trial supports the court’s decision these excuse
prospective jurors, reject we proposition VI.
Evidentiary issues Demonstrative I, evidence. law proposition argues the trial court abused its by allowing discretion the state to use demonstrative doll during its cross-examination him the rebuttal testimony of the examiner, medical Dr. Sterbenz. examination, On direct Jones testified that Yates died while they were
having sex. “rough” sex, stated as the two began having Yates asked him to place his hands around her throat in order to restrain her breathing she came orgasm. close to Defense counsel queried, hands, “You have your at least both, or one throat; around her is that correct?” answered, “One of them.” Jones further crack, testified he then heard “a or cracking sound popping sound” and noticed that Yates was not moving. Before Jones’s began, prosecutor cross-examination told court
that he anticipated calling Dr. Sterbenz as rebuttal witness and therefore requested that Dr. permitted Sterbenz be to observe state’s cross-examina- testimo- Jones’s observing to Dr. Sterbenz’s objected The defense tion of Jones. doll. demonstration objected to Jones’s ny. It only: doll, argued defense counsel As to the any perform that Mr. Jones object having request to will [W]e I use the phrase— can any type act on of—if type of doll.” “Demonstrative by saying, sentence finished defense counsel’s The court counsel continued: Defense that. The doll is object are doll, right, your going
A all Honor. We going so what are Yates. And size of Susan body no close to way a fair Honor, I think it is Your don’t objection to this. do state an is the doll not alive. comparison; besides yet. I issue of the doll “I have not raised the responded, prosecutor The Yates, as Ms. doll is the same size that, actually the
didn’t mention but ruled, court “Note the The trial height.”2 the same approximately weight it.”3 objection. may use He request for Dr. objection to the state’s trial court But the sustained then The informed prosecutor cross-examination.
Sterbenz observe to the convey Jones’s demonstration plan alternative the court the state’s medical examiner: record, (the I’m going are clear on prosecutor): So we Mr. LoPrinzi * * * did, and I dummy on the what he Mr. Jones demonstrate
to have doctor, accurately. I’ll do the best I hopefully for the will redemonstrate does, just if he’s the doctor see what he even can. I would rather have portion. for that (defense counsel): for our cross-examination destroys It
Mr. O’Brien side, your Honor. can, right, if he’s not you doing You will do best
The Court: will make that clear. that clear. defense they will make *10 event, any part this Jones has an is not record. 2. marked as exhibit and The doll was not argument was size to victim. doll dissimilar abandoned the doll, use prosecutor have the demonstrative should not been allowed asserts that never mentioned surprised Yet defense counsel that would be used. because the defense was support disagree that objection. claim. We record surprise in And the does destroys use, stating only, “It surprise by, objecting to doll’s exhibited defense counsel * * for our side cross-examination Use the demonstrative doll cross-examination, During asked prosecutor Jones to use a {¶ life-sized 77} doll to how Yates, demonstrate he accidentally killed he described on direct clear, examination. The record is far from but it does reflect that Jones left the witness stand and performed type some of demonstration. The following took exchange place demonstration: (theQ prosecutor): you Can you show me how neck? grabbed her I * * * you her,
assume laying on top of correct? [sic] (the defendant): Yes,
A sir, I was.
Q: Okay. you And used both hands to do it? Yes,
A: sir.
Q: All right. And how you hard did do it?
IA: just applying was like pressure up here.
Q: Just like that?
A: Yes.
Q: No movement? ** *
IA: having was sex also at the time.
Q: I’m talking about with your hands around her neck.
A: Just like this. it,
Q: That steady just was pressure, that? like so, A: I yes. believe
[*] [*] [*] Q: And other than what you showing there, are right you us did nothing else? this,
A: I was like and I coming sex, mean I was I having —I putting my weight that, arms, on her like both that. like Q: you And then heard the pop? Yes,
A: sir.
Q: you And when heard the did pop, stop she moving? Yes,
A: sir.
[*] [*] [*]
Q: All right. you up. Now can You get get can up. I Court: think can sit down. *11 LoPrinzi: Yes.
Mr. down, Jones. sit Mr. You can
The Court: objected trial counsel testimony, of Dr. Sterbenz’s rebuttal the start At demonstration replicate attempt being allowed prosecutor’s to the stated, jury will objection “[T]he the and overruled the The trial court with doll. same, the similar whether is now determine produced what was remember following framing doll in then used the prosecutor at all.” The or not question: her neck hands around Doctor, he both put indicated
Q: defendant feet, engaged her top fashion, on both over up this fashion, in that never on her neck weight pressed all his with intercourse put pressure. additional but anything did arms, time, on his her arms moving she
During period act, sex, or at activity with him sex sexual mumbling engaging He moving. stopped neck area. She pop he heard which time her. he tried revive her, and she was dead as stopped choking then is “whether that scenario then asked Dr. Sterbenz prosecutor The his Dr. Ster- opinion, findings.” providing Before medical [his] consistent just told: of what been understanding expressed benz took the doll and (Dr. Sterbenz): or the terms clarify the circumstances I’d like A * * * being very clear strangulation, purposes I as will refer to ** * description of how event here, and I’m this as interpreting I have occurred, other that would any hypothetical I’m interpreting my opinion[.] me and asked placed before (the asking. what we are That’s
Q prosecutor): dummy? One, can I approach Witness: may. The Court: You this individual person, is that you telling are me
A: What placed the hands are mean, straddling person this on—I forward neck, left hand the neck. neck, right gripping gripping about least, if I’m that, interpreting me is I’m you telling what are Also corrected, other than gripping that the hands I to be wrong would like neck, are static on the neck. otherwise squeezing neck and Q: That’s his testimony.
$ ^ *12 A: I’m [sic], that assuming the individual themself this case a is not in dummy, any way their a moving way hands such to claw or try grab pry or to off of neck? hands Q: That’s testimony. his
A: Okay. And that weight of this individual is front to back as I am mean, direction I’m I demonstrating, positioned here. front to dummy, front, down, back of the pushing straight not pushing to side * * * or anything. just pushing [I]t is down the neck and squeezing the neck.
Q: That’s how it was shown. Dr. opined Sterbenz that the physical evidence did not support 81} {¶ explanation about how Yates had died. Dr. Sterbenz explained “[s]imply placing hands on the neck and squeezing yield type would of pattern of injury” Yates suffered. He stated that the fractures hyoid of the cornu and bone resulted from a “violent squeezing force to the neck.” Dr. Sterbenz also testified that “asphyxiation quite takes occur, number of minutes and after occurs, pressure unconsciousness then needs to be maintained until death is accomplished. And quite she has bit peteehia[e] of obvious on her face and eyes is indicating this of type pressure that occurred.”
Applicable law
Demonstrative
if
evidence
admissible
it
general
satisfies the
standard
of relevance
forth
set
in Evid.R. 4014and if it is substantially
object
similar to the
or occurrence that it
LaMar,
is intended
represent.
State v.
95
181,
Ohio St.3d
¶
Physical
or
(1981).
Relevance
of Jones
during
doll
cross-examination
use
prosecutor’s
claim that he
relevant to Jones’s
rebuttal
Dr.
during
Sterbenz’s
Landrum,
St.3d
v.
Ohio
killed Yates. See State
accidentally
State,
(1881),
one
paragraph
(1990),
{¶ On story changed. But Jones’s neck, as he had on direct examination. described to one hand restrain examination, testified that he used expressly direct cross-examination, that he had used breathing. Jones demonstrated Yates’s On and would have is from the record discrepancy hands do so. This obvious two to jurors. to the glaring been Dr. Dr. used doll Similarly, prosecutor Sterbenz happened about what clarify explanation Jones’s
Sterbenz’s rebuttal that it turn, explain autopsy photographs In Dr. used with Yates. Sterbenz that Yates in the manner impossible for Jones to have killed physically had demonstrated. his hands First, placing that Jones’s explained Dr. Sterbenz of abrasions produce complex pattern would not squeezing neck and
Yates’s abrasions contrary, upward neck. To the Yatеs were on Yates’s present that against is of one surface twisting force there were with a “where that consistent but a soft vigorous activity, other, very skin contact with for skin to possible another certainly the neck is about between, clothing twists of such as ligature contrast, “Simply placing explained Dr. Sterbenz consideration.” definite injury.” yield type would squeezing the neck and hands on neck was not consistent on Yates’s addition, bruising severity force, act, and that level of a violent but rather “shows squeezing simply as violent.” interpreted as or commonly conceived arms that Yates’s explanation Next, Dr. explained Sterbenz was not credible breathing” “restrained not near her neck injuries, “speak[ ] which type” “gouging,” “fingernail Yates’s neck had
because clawing try and also at their neck grasping that the victim is concept around her neck.” move, strangulation force remove whatever is the on the left side that Yates had bruise explained Dr. further Sterbenz not a hand a hand. “This is by not a mark that would be left of her neck that was by statically a hand mark, simply imparted mark that would is no kind of be this “big referred to a broad abrasion any means.” He also the neck squeezing version of events. by Jones’s explained chin” that could not be under the that there was explained Dr. injuries, internal Sterbenz Regarding the blood vessels on larynx surrounding the left side of “hemorrhage along Rather, explanation. inconsistent with Jones’s side of the neck” the left movement vigorous, violent vigorous moving, “from injury would be caused at the neck.” thyroid to find the expect that one would explained Dr. Sterbenz But he it was. version events—and to be fractured under Jones’s
cartilage *14 and, than a centimeter a crack that was less fracture was explained Yates’s that such a he knew autopsy procedures, experience from his professional of the examiner addressed each The medical produce “pop.” fracture would not that none of explained and he found in Yates’s neck remaining fractures that produce “pop.” them would that there out that Jones had claimed pointed Dr. Additionally, Sterbenz
{¶ 93} of bruises on the back autopsy large But the revealed was no other movement. subjected “pounding that Yates’s head had been the head that indicated action.” died gone limp that if Yates had Dr. Finally, explained Sterbenz to find some kind of expect claimed—one would thereafter'—-as Jones
immediately Instead, Dr. injury. no such Dr. Sterbenz found injury spinal to the cord. larynx, going which “is fracturing that Yates had discovered Sterbenz suddenly going limp result in her injury in a that would neurologic to result from testified that Yates died Dr. Sterbenz explain, death.” To further sudden flow and restricts the blood compression, which relating to neck strangulation Yates became for some time after to have maintained which would have had been 26 sum, In
unconscious. Dr. Sterbenz found all of Jones’s explanation strangulation autopsy. to be inconsistent with the directly jury understanding, Jones’s demonstration aided the and thus
assessing, credibility Likewise, of his version of events. use of the demons- trative doll rebuttal aided the medical examiner’s understanding of Jones’s critical explanation ability scientifically events and his assess Jones’s turn, story. jury was aided Dr. opinion. Sterbenz’s We readily conclude the demonstrative evidence was relevant claim that accidentally Jones’s killed Yates.
Similarity The demonstrations were the same they as or similar to the events that were intended to represent. Jones’s demonstration involved about his own conduct. Before providing testimony, the relevant Jones twice unequivocally event, stated that he recalled night of Yates’s murder. In any any dissimilar- ity between Jones’s demonstration on the doll and his actions with Yates did not give Texas, rise to unfair prejudice. 703, See Moore v. 154 S.W.3d 708 (Tex.App. 2004) (defendant’s use of a doll during cross-examination was fair comparison to conduct). act in question because defendant demonstrated his own nothing And the record indicates that the prosecutor’s and the medical examiner’s use the doll during rebuttal was different from Jones’s Indeed, demonstration. lodged objections counsel no accuracy the replications engaged in no cross-examination on any alleged based discrepancies. Further, court, the trial which viewed doll ruling use, before on its did not abuse its discretion in concluding that the demonstrative doll could be “
used because it was similar in size to the victim.
‘An exhibit is not necessarily
incompetent because it fails to show some exact
thing
connection with the
subject under investigation, provided it shows some matter bearing directly upon
the matter under investigation, with an explanation of how it differs from that
”
Cowans,
being
68,
which is
investigated.’
State v.
87 Ohio St.3d
717 N.E.2d
(1999), citing
(N.S.)
Cleveland
Provision Co. v.
Hague,
Ohio C.C.
223, aff'd,
(1912),
Ohio C.C.
87 Ohio St.
Evid.R. kOS
prejudice
Unfair
in unfair prejudice
the doll resulted
Jones contends that
use of
jury’s
on
the cross-examination
improperly
only
“focused the
attention
because
did not raise
to the
of the
of the evidence.” Jones
exclusion
rest
Appellant,
trial;
therefore,
plain
all but
error. See State v.
objection at
he has waived
this
¶
Hale,
record reflect clear,” that “it conceding entirely suggests appears that record is “not doll, top pressure asked on to the neck with lay apply Appellant [sic] hands, both sex.”6 mimicking having never transcript A review of the reveals Jones was asked there is
simulate sexual intercourse with doll. And no reason believe he, fact, engage again following did in such a simulation. We once consider example: exchange (the her I Q prosecutor): you you Can show me how neck? grabbed * * * her, laying top correct? you
assume [sic] (the defendant): Yes, sir, I A was.
Q: Okay. used both hands to do it? you And Yes, A: sir.
Q: All hard it? right. you And how did do just I applying pressure up A: was like here.
Q: Just like that?
A: Yes.
Q: No movement? * * * I having
A: was sex with her also the time. Q: your I’m hands around neck. talking about attorney questioned This exchange prosecuting reveals neck, pressure hands around Yates’s the amount of placement about of his argued argument, to “simulate 6. At oral counsel for Jones also that the court ordered Jones the sex strangulation.” any record trial court issued such acts” and “the does not reflect directives Jones. *16 neck, to her and the movement of his hands on her neck. When Jones applied intercourse, attorney actually referred to the sexual it was the who prosecuting strangulation. redirected to the Indeed, strangulation, Jones’s demonstration related to the which he
{¶ 105} accidental, intercourse, claimed to be not to the which he claimed to be consensu- al. clarifying questions testimony And the medical examiner’s and rebuttal focused on the of squarely position Jones’s hands around Yates’s neck and the nature and pressure direction Jones claimed to apply. Moreover, the prosecutor only during segment used doll short
his cross-examination of Jones and the rebuttal of Dr. Sterbenz. The 2,000 transcript guilt phase of the trial is than pages; portion more reflecting the use of the by demonstrative doll both witnesses totals seven pages, strongly suggesting that the demonstration was not unduly pro- sensational or longed. Finally, the per unfairly demonstration was not se prejudicial
requiring Jones to leave the witness stand to conduct the demonstration. Prose-
cutors are allowed to ask the
during
defendant
cross-examination to step down
from the stand and demonstrate
or her
conduct.
Harris,
(Oct.
2d Dist. No. 94 CA
1995), the defendant testified that he did not to kill intend the victim when hе fired prosecutor shots. Id. at *5. The then asked the defendant during cross- step examination to down from the stand and to angle demonstrate the at which he had gun held the when he fired prosecution the shots. The also asked the defendant to approximate, by reference to person another involved in the demonstration, the distance that had existed between objects himself and the struck the bullets. Id. The state used this demonstration to show that it was physically impossible for a bullet fired as the defendant demonstrated to have struck the objects he indicated. Id. In upholding the admission of the demon- stration, stated, the court “It directly related to the veracity Harris’s sworn statements and was a proper subject of cross-examination.” adopt Id. We reasoning Harris’s and likewise conclude that the demonstration here related directly veracity a proper subject of cross-examination. reject We Jones’s claim that the unfairly demonstration was prejudi- cial. and misleading jury issues
Confusion of prosecutor’s purpose using the demonstrative doll was obvious and would not have confused the issues or jury. misled the The entire case turned on Jones’s claim that he accidentally killed Yates while they having rough sex. His prosecutor’s demonstration and the use of the doll counter his and to impeaching purpose for the plainly
rebuttal were to all of the a defense have constituted testimony, which—if believed—would in the indictment. charges contained *17 I. overrule proposition we foregoing, Based on
{¶ 111}
II,
law
Jones
In
by
proposition
wife.
Excited utterances
wife’s statements
Jeffries
admitting
his
that the trial court erred
argues
that the
only
Jones contends
as excited utterances.
Morrison
Detective
utterance, but
that
their
of excited
the definition
did not meet
statements
For
Clause.
and the Confrontation
privilege
the spousal
violated
admission
first.7
claim
sake,
spousal-privilege
will address Jones’s
clarity’s
privilege
Spousal
provides:
2945.42 and
is codified R.C.
Spousal privilege
{¶ 113}
by
made
one
concerning a communication
testify
or wife shall not
Husband
other, during
other,
in the
of the
presence
or act done
either
to the
in the known
coverture,
was made or act done
the communication
unless
witness, or in case
to be a
person competent
of a third
presence
hearing
or
* * *.
or wife to the other
either the husband
injury by
of personal
nontestifying spouse.
to the
privilege belongs
The R.C. 2945.42
(1987).
cannot
1, 2,
privilege
196
“Spousal
506 N.E.2d
Savage,
v.
Ohio St.3d
or her
from
prevent
spouse
a defendant to
unilaterally
be waived
and allows
exceptions
statute’s
unless one of the
testifying
privileged communications]
[as
Brown,
55,
Delores’s Delores, wife, trial the trial court advised Jones’s began, Before he was her husband. Delores testify against not have to Jones because she did witnesses, compelled presentation we are light In of the dissent’s miseharacterization first, testify testimony although was the seventh witness to point we address Delores’s she out Delores, Curiously, following claims the order of witnesses: of the state. the dissent on behalf fact, Jeffries, exactly opposite. The dissent’s misstatement the order was Morrison. testimony, “the make the claim that after Delores’s presumably for dramatic effect in order to made respective awaiting from Detective Morrison jurors edges seats” were left on the of their concerning It statements to Delores. about the content of Jones’s Jeffries familiarity the interests at possibly a lack with the record. Given made out of misstatement context, case, explains “the order of irresponsible. in another either is As the dissent stake this events is critical.” spousal privilege, But asserted testify.8 that she wished to because Jones
said testify anything “as to trial court ruled that Delores would not be allowed told her relative to this matter.” [Jones] Delores testified the state’s case-in- ruling, Consistent -with was at home April reading that at around 4:00 p.m.
chief that she and watching the news on television. She testified newspaper news, testify about that was on the but she did not something had conversation later,” “A to a store they they about what discussed. little while walked because cigarettes. wanted to some get home, friend, returning After Delores drove the home “[h]ysterical, upset, hyperventilat- Jeffries. Delores testified that she was Delores also testified that she arrived at home and told Jeffries ing.” Jeffries’s what her husband had said. Delores and Jeffries then called the Delores to someone police; spoke *18 somebody
at the detective bureau and stated that she “wanted to to speak thereafter, charge” cemetery. Shortly about the dead woman found the home, at him Detective Morrison arrived Jeffries’s and Delores told what Jones Morrison, said. that upset had Delores stated when she talked to she was still and scared. not testify Delores was asked—and did not to the communication
{¶ 119} —as Therefore, testimony between her and Jones. Delores’s did not violate Jones’s spousal privilege. testimony and Morrison’s
Jeffries’s
contends that
spousal privilege
by
was violated
the trial
permitting
court’s
Jeffries and Detective
to
that
testify
Morrison
Delores had told
that
them
Jones had told her that he killed the woman
cemetery.
found
reject
argument
We
this
spousal privilege wholly inapplicable
because
is
to the
Perez,
testimony
of a third
party. See State v.
Ohio St.3d
2009-Ohio-
6179,
husband and “do some conversations.” Id. at taped 108. Perez’s wife trial, agreed to allow her conversations with Perez to be recorded. Id. Before suppress taped Perez filed motion to conversations on the that then- ground privilege. argued admission would violate the marital Perez admitting taped equivalent allowing testify conversation was to his wife to to the content of * * * (B) provides, “Every person competent except: spouse 8. Evid.R. 601 to A be witness * * * (2) testifying against spouse charged except testifying spouse the other with a crime when Indeed, testily.” Spousal competency testify. elects to is not an issue because Delores elected to challenge spousal competency. not Jones does Delores’s on the basis of ¶ at played to be tapes 112. trial court allowed at The conversation. Id. ¶at 109. trial. Id. violate did not conversations taped that the admission We held wife’s way of the defendant’s they by not introduced 2945.42 because were
R.C.
¶
that a
2945.42
emphasized,
specifies
“R.C.
Id. at
120-122. We
testimony.
by
to
‘[hjusband
made
one
concerning
not
a communication
testify
or wife shall
**
no
added.) Thus,
face,
does more
the statute
*.’
its
(Emphasis
the other
spouse’s
other
statements.”
testifying
from
spouse
than
preclude
¶
sic.)
113.
Id. at
(Emphasis
analysis
agreed
Michigan Supreme
In
with the
Court’s
holding,
so
¶
(1993).
Fisher,
at
442 Mich.
Fisher, provided which spousal-privilege that Michigan’s the court held “ not, consent, as to any other’s ‘be could without the examined spouse that one ” marriage,’ apply did by made one the other communication hearsay of out-of-court statements preclude a court’s consideration sentencing 600.2162. quoting Mich.Comp.Laws wife. made the defendant’s Id. wife, boyfriend Mary. of his fatally estranged Fisher had stabbed trial, accidentally the victim At Fisher that he had stabbed Id. at 563. claimed (Fisher) abusing her. Mary’s boyfriend physically aid as her when he came convicted him of rejected version of the events and jury Id. at 564. Fisher’s sentencing, Id. At court considered statements second-degree murder. report. in the Id. Mary presentence attributed and that were contained reflected, police told a among things, Mary report at 565-566. The other had the victim on to her that he stabbed officer Fisher admitted *19 did not Michigan’s spousal privilege apply, Id. at In that purpose. holding Fisher concluded: examined” with may
The that neither “be provides spouse statute communication made one to other respect any by tо examined,” a connotes narrow testimonial marriage. phrase, This “be as a against being questioned sworn privilege only spouse’s privilege —a words, spouse In other witness communications. about described The of the marital apply. must for the to introduction testify privilege means is not through precluded. communication other at 575. Fisher Perez, analysis concluding In relied Fisher’s agreed we with and apply did not evidence introduced statutory spousal privilege
that Ohio’s a third through party:
32 statute, v. may
“In
not add or delete words.” State
construing
(1999),
424, 427,
N.E.2d 540.
2945.42
Hughes
86 Ohio St.3d
715
R.C.
testify concerning
that a
or wife shall not
communica-
states
“[h]usband
* *
by
phrase
tion
one to the other
Like the
‘be examined’
made
statute,
“testify”
clearly precludes
the word
R.C. 2945.42
Michigan’s
testimony.
clearly,
preclude
Just as
it does not
“introduction
spouse’s
through
the marital communication
other means.”
¶
Fisher,
575,
120,
at
442
at
quoting
Perez
Mich.
principle
construing privileges narrowly.
(“Privileges
Id.
are to be
for truth
narrowly
they impede
construed
because
search
and contravene the
evidence”);
public
right
everyone’s
that the
has a
see also Trammel
principle
(1980).
States,
40, 50, 100
v.
United
U.S.
S.Ct.
generally understood not to provide protection spousal communications had been disclosed to a third As party. Id. the court wrote: *20 by either of these these written parties divulge things giving
[I]f another, communication to or if that communication is a disclosed mails, otherwise, robbery or and it into the of a third gets hands raised, that that if person, person may, and the issue be is clear third case, be witness offer that communication.
Id. application only straightforward requires claim Resolution Delores the conversation between Jones Because the content of
of Perez. wholly testimony, R.C. 2945.42 of Delores’s by way not introduced inapplicable. statements
Admission of out-of-court to the admission apply to the rules now turn our attention We our Rules of Clause and federal Confrontation these out-of-court statements —the testimony. so, the relevant trial fully first more detail doing Evidence. and Morrison’s Jeffries’s 4:30 and at her home between that Delores arrived Jeffries testified Delores was ran to Jeffries. immediately upstairs 24. Delores p.m. April
5:00 on shoes even wearing that Delores was “screaming.” Jeffries noticed “upset” and house. Jeffries and was no shoes inside the Delores knew that the rule though exchange: following Delores then had the begins to Delores, off. And that’s when she your
A: I said: take shoes it, he did it. say: He did
Q: And said what now? you husband, I Did what? He, My Phil. And said: A: who? And she said: I woman? And she the woman. And said: What And she said: Murdered cemetery. in the they said: The woman that found police. then called the Delores testified that Delores Jeffries at number. Morrison arrived Jeffries’s kept dialing wrong “really upset” call. phone ten minutes” after the “[pjrobably home investigate Yates’s assigned testified that he had been Morrison Urbank, him at home detective, had called and that another Detective murder with the speak 24 and that a woman wanted April around 5:00 said p.m. Urbank cemetery. woman found on the case of the dead working detective to someone speak that she wanted to emphatic that the woman was told Morrison day. working *21 after the call and met immediately drove to home Morrison Jeffries’s meeting with Delores:
Delores inside the house.9 Morrison described first, kept running A: I her out at she back and quite figure couldn’t forth, making windows and sure no one was looking pacing, out the hysterical with me. And coming. hyperventilating basically She was Look, I me. And that’s when I asked her: Do basically you said: called You me out. And she you something you have need to tell me? called in the My girl cemetery. said: husband is the one killed (defense counsel): Objection, hearsay. Mr. O’Brien objection, The Court: Note the overruled. * * * that,
Q: when told what you your response? And she her, A: I as I had to anybody. actually shocked ask tell her to calm down: Are do you you sure? How know this? And she said: Because he told me her name was Isn’t it Susan. Susan? Is Susan? Q: you Delores Jones tells that her husband is the one that killed the * * * cemetery, woman and that he told her the woman’s name is Susan?
A: Yes.
Q: you previously And indicated that that information had not been press, released to the correct?
A: That was
known to
only
us.
Admission of an out-of-court
comport
statement must
with both
constitutional
evidentiary
Washington,
dictаtes and
law.
541 U.S.
Crawford
36, 51,
(2004).
124 S.Ct.
{¶ had Clause because Jones purposes she was unavailable for the Confrontation invoked the spousal privilege. case as substantially The facts of are similar to those of this Crawford Crawford, of the witness. In the defendant invoked the unavailability
to the
wife,
him trial.
testifying against
marital
his
from
at
Id.
privilege
keep
Sylvia,
trial,
tape-recorded
police
at
the state
the wife’s
statement to
During
played
Noting
that
offense he committed.
Id.
that the wife had admitted
described the
offense,
hearsay exception
the state invoked the
for statements
facilitating
that
this evidence
against penal
admitting
interest.
Id. Crawford countered
court,
rights.
During appeals
violated his Sixth Amendment
Id.
state
the state
neglected
that Crawford waived his
to confrontation when he
argued
right
424, 429,
testify.
Crawford,
call
v.
147 Wash.2d
{¶ 541 challenge portion Crawford, because the state did not of the decision. 177, Nevertheless, fn. 1. it U.S. S.Ct. 158 L.Ed.2d did conclude case, Sylvia’s against this the State admitted testimonial statement “[i]n opportunity that he had no to cross-examine her. petitioner, despite fact That alone is sufficient to make out a violation of the Sixth Amendment.” added.) Id. at 68. (Emphasis here, not that Jones waived his Similarly argue the state does Sixth privilege. See right by invoking spousal
Amendment
to confront Delores
(1984),
Keairns,
paragraph
St.3d
witness we, so, as in need not Crawford, her.10 doing to cross-examine opportunity asserted the state. waiver issue because has been reach the Thus, muster pass statements constitutional admission Delores’s Ac- purposes if are of the Confrontation Clause. only they nontestimonial to Morrison and cordingly, we must now determine whether Delores’s statements Doing inquiries so involves different for Morrison Jeffries were testimonial. Jeffries, was a officer. responding police because Morrison Morrison
Statements to
*23
In
else
“testimo-
Crawford,
explained
the court
that whatever
the term
* * *
minimum,
covers,
at a
prior testimony
nial evidence”
“at a
applies
trial;
at a
hearing,
grand jury,
police
before a
or
former
preliminary
1354,
68,
at
Crawford, 541 U.S.
S.Ct.
158 L.Ed.2d
interrogations.”
then,
the court has
effort
on the
expended
expounding
Since
considerable
in
context of
meaning
interrogation.
of “testimonial”
police
years
Crawford,
Two
its decision
the court
the issue
after
revisited
Indiana, 547
Washington
in the consolidated cases of Davis v.
and Hammon v.
(2006).
2266,
cases,
126 S.Ct.
Statements are nontestimonial when made course of circumstances interrogation objectively indicating primary under that the an purpose interrogation police is to enable assistance to meet They objec- are when the ongoing emergency. testimonial circumstances is no that the tively ongoing emergency, indicate that there such purpose interrogation to establish or events primary prove past potentially relevant to later criminal prosecution. Perez, finding holding does not with our 124 Ohio 2009-Ohio-
10. This
conflict
St.3d
Perez,
right
1-1 immediate- identifying describing her assailant and his whereabouts operator Id. at 817-819. test, ly Applying after an assault. the court determined its interrogation objectively primary “the circumstances of indicate [the 9-1-1] Id. at assistance to an purpose police ongoing emergency.” enable meet 828. The court reasoned that “the nature of what was asked and answered call], [during again objectively, the 9-1-1 viewed was such the elicited resolve necessary statements were to be able to rather present emergency, (as Crawford) than to learn what had in the simply happened past.” (Empha- sic.) Id. at 827. addition, sis the call “was a call for bona plainly help against physical fide threat” and involved “frantic answers” “in an environment that given (as out) tranquil, any was not or even far as could make operator reasonable safe.” Id. Accordingly, the court held that these statements were nontestimonial. Id. at 828. Hammon involved a police responding victim’s statements to officers
a domestic-violence they had secured the scene. Id. at 819-820. after complaint The court held that these statements were testimonial and were barred Id. Sixth Amendment. 829-832. The court stated that there was “no *24 immediate threat” to the victim and “no in emergency progress,” because the the abusive husband from the wife. Id. at 829-830. The police separated had victim, court reasoned that when the questioned seeking officer the he was “not ” (as Davis) Id. to determine ‘what happening’ happened.’ is but rather ‘what viewed, at 830. The court concluded that if not “[objectively primary, the indeed * * sole, the purpose interrogation was to a crime investigate possible Id. - Bryant, v. -, In Michigan 1143, 1156, U.S. 131 S.Ct. 179 (2011),
L.Ed.2d
provided
the court
further
of
explanation
“ongoing
the
Davis.
Bryant, police
emergency” discussed
In
a
responding
officers
to
victim,
shooting call found the
Anthony Covington, lying
ground
on the
with a
“
Id. at 1150. Police
gunshot wound.
‘what
Covington
officers asked
”
Id.,
him,
happened,
shooting
who had shot
and where the
had occurred.’
(2009).
quoting People Bryant,
132, 143,
483 Mich.
Replying
al the ultimate focuses whether of such emergency past is to meet an or to establish events for interrogation ongoing Id. at later an court prosecution. inquiry, criminal 1156-1157. such must “objectively evaluate the circumstances which the encounter occur [red] Id. at parties.” statements and actions of the 1156. The is not on focus subjective declarant, or actual or intent of the or the but on purpose interrogator “the that had” purpose participants reasonable would have under same Id. The court cautioned that the focus must be on the perspective circumstance. at the for parties interrogation, hindsight, time of not based “[i]f knew time parties information the at the of the encounter would lead a that an person emergency, reasonable to believe there was even if that belief was incorrect, later is proved purposes sufficient the Confrontation Id. at fn. Clause.” The court an emphasized emergency “whether exists and is - U.S. -, highly context-dependent inquiry.” is a
ongoing Bryant, 131 S.Ct. The court L.Ed.2d 93. noted violence cases “[d]omestic like Davis Mammon often have a zone than potential narrower victims cases Id. The court involving safety.” threats assessment public explained “[a]n an police whether that threatens the cannot emergency public ongoing solely focus on first has narrowly whether threat to the victim been *25 neutralized because threat to responders public may the the first continue.” Id. court also that an scope emergency stated “the duration and of may Bryant, Id. depend in In part type weapon employed.” the of the victim had wounded, mortally weapon gun, been the was a the not known police the circumstances, identity of the shooter. Under these the continued shooter pose possibly a threat to others because he was still on the Covington loose. Id. at 1166. “ Davis, noted, The court it had in ‘a which conversation {¶ ”
begins as an to determine the need for can interrogation emergency assistance’ “ ” Davis, Id. at ‘evolve into testimonial statements.’ at quoting 547 U.S. 828, 126 2266, 165 S.Ct. L.Ed.2d 224. The court explained: if, may
This evolution occur for a declarant example, provides police information that makes clear that what an appeared emergency be is longer not or is no an or that what a emergency appeared public to be actually threat is It occur if a private dispute. perpetrator could also is Davis, disarmed, surrenders, or, is as in apprehended, flees with little prospect posing a threat to Trial public. courts can determine in the first instance any when transition from nontestimonial to testimonial occurs, portions and exclude “the statement any have become * * testimonial *.” Id. at quoting Davis at 829. The court stressed that an ongoing emergency “whether exists is
simply important one factor—albeit an factor —that inquiry informs the ultimate interrogation.” Id. regarding ‘primary purpose’ of an at 1160. encounter, Another factor involves informality because
“formality suggests the absence of an emergency and therefore an increased likelihood that the purpose of the is to ‘establish or interrogation prove past ” Id., potentially events relevant to later criminal prosecution.’ quoting Davis at Bryant, In police encountered a “fluid and somewhat confused” situation. Id. at 1166. Their questioning formality lacked because it “occurred in area, an exposed, public prior services, to the arrival of emergency medical and in a disorganized fashion.” Id. at 1160. The court also stated that “the statements and actions of both the
declarant interrogators objective provide evidence of the primary purpose of the interrogation.” Id. The court stated, “Davis requires combined inquiry instances, accounts both the declarant and interrogator. many primary purpose of the interrogation will be most accurately ascertained looking to the contents of both Id. questions and the answers.” 1160-1161. stated, Additionally, the court “Objectively ascertaining primary purpose the interrogation by examining the statements and actions of all participants * * * the approach most consistent with Id. at 1162. past holdings.” our objectively, totality Viewed surrounding circumstances Delores’s statements to Morrison demonstrate that “primary purpose” of Morrison’s questioning was obtain information about Yates’s murder. recognize We some of the facts tend to demonstrate that initially appeared pose continuing threat to Delores and maybe others. When Morrison arrived at *26 found going what to encounter. He home, was he was unsure Jeffries’s forth, back “kept running afraid who and Deloi'es, “hysterical” and and who was coming.” no More- sure one was pacing, making out windows and looking home, setting, not the an informal and over, this occurred at Jeffries’s encounter station. police to an active crime hand, dispatched Morrison not On the other was Davis. He home because he was Bryant
scene, went to Jeffries’s unlike in body had been a about Yates’s death. Her person told that information No involved in Yates’s day gun at a location. previous found the different an identify apprehend to Thus, although trying were still killing. police and his contact with arrival at Jeffries’s home at-large Morrison’s perpetrator, as Davis in ongoing emergency occur midst of an Delores did not inas Bryant. type ongoing faced with the same threat they And not Moreover, any arrival reduced Bryant. greatly Morrison’s at Jeffries’s home to Delores. immediate threat report that her police From she called to perspective, Delores’s cemetery. the woman found She insisted killing
husband had confessed charge.” although And Delores was nervous and speaking with “someone afraid, any way. there is no indication that Jones had threatened her reasons, all of we that Delores’s For these conclude statements testimonial, into and their admission evidence violated the Con- Morrison were frontation Clause.
Statements
Jeffries
police interrogation.
Delores’s statements
Jeffries do
involve
160}
{¶
we look to Therefore, in
the Confrontation Clause
question,
order
resolve
Stahl,
186,
41
Indeed,
police
would be available for later use at trial.
Delores did not call the
until
she told Jeffries what Jones had told her.
after
appeals
Ohio courts of
have reached the same conclusion
similar
Zadar,
94698,
Jeffries were and their admission into did not evidence violate the Confrontation Clause. 803(2)
Admissibility under Evid.R. Having determined that Delores’s statement was not Jeffries Clause, testimonial and therefore not by barred the Confrontation we must also now decide whether the statement was admissible under our rules of evidence. An excited utterance is relating statement to a event or startling “[a]
condition made while the declarant was under the stress of excitement caused 803(2). the event or condition.” Evid.R. A four-part test is applied determine the admissibility of statements anas excited utterance:
(a) there was some occurrence startling enough produce declarant, nervous excitement which was sufficient to still his reflective thereby faculties and make his statements and declarations the unreflective and expression beliefs, sincere of his actual impressions and and thus unreflective, render his statement of declaration spontaneous and
(b) declaration, that the statement or even if strictly contemporane- cause, ous with exciting its was made before there had been time for such nervous excitement to lose a domination over his reflective faculties so that such domination continued to remain sufficient to make his statements and declarations the expression unreflective and sincere actual impres- beliefs, sions and
(c) that the statement or declaration related to such occurrence startling occurrence, or the circumstances of such starling (d) that the declarant had an opportunity personally to observe matters asserted in his statement or declaration. (1955), Baker, sic.) 124 N.E.2d v. 162 Ohio St. Potter
(Emphasis
Taylor,
66 Ohio
approved
followed and
syllabus,
two of the
paragraph
(1993),fn.
295, 301,
startling
produce
enough
Bealer,
No.
v.
12th Dist.
to Jeffries. See State
make the excited utterаnce
¶
(defendant’s
1956089,
{¶ occurrence, they were not contem- startling though the even under stress with Jones’s confession. poraneous longer which can no per no se amount of time after a statement
There is are requirements The central be considered be an excited utterance. still the that made while the declarant is under the statement must be may the not be a result of reflective stress of the event and statement thought. time the and the event is the between statement passage
Therefore decided dispositive question. relevant but not case must be “[E]ach circumstances, attempt on its since to formulate patently own is futile an delimiting an rule limits within which oral utterance inelastic time that it exclamation.” spontaneous must be made order be termed sic.) Duncan, 215, 219- Taylor State v. 53 Ohio St.2d (Emphasis quoting (1978). 220, 373 1234 N.E.2d an and elapsed than hour had between Jones’s confession Less Delores on a and
Delores’s utterance to Jeffries. went short walk home then drove alone to Jeffries’s time. Jeffries testified she home. highly upset screaming Delores was when entered Jeffries’s ran out that the woman found upstairs Delores blurted killed Thus, cemetery. startling was under influence of the occurrence Delores Wallace, she excited See 37 Ohio when made her utterance Jeffries. (1988) 87, 90-91, (affirming 524 466 admission of statements St.3d N.E.2d even there was a 15-hour interval between though excited utterances though utterance and even the declarant startling occurrence Baker, time); App.3d State v. part unconscious for Ohio (12th Dist.2000) notwithstanding (admitting testimony N.E.2d 819 several-hour utterance). interval occurrence and startling between argues Delores’s statements were not made under the startling stress of the event responded because Delores to Jeffries’s questions. However, we have held: admission of a
[T]he declaration as an excited utterance is not precluded (1) (2) questioning which: is neither coercive nor leading, facilitates expression declarant’s of what already the natural focus of the declar- (3) thoughts, ant’s does not destroy domination of the nervous excitement over the declarant’s reflective faculties.
Wallace, paragraph two of syllabus. Jeffries, it, Delores told “He did he did it” before Jeffries asked any
questions. Jeffries questioned immediately Delores thereafter. This questioning *29 prompted Delores reveal that she had been speaking about her husband and the dead woman found cemetery. questions Jeffries’s to Delores were clarifying, leading. And they helped express Delores the focus of her thoughts. Finally, Delores responded to these questions while she was “hysteri- cal” and highly excited. Accordingly, Delores’s statements did not lose their character as “excited just was, utterances” because she in part, answering questions. Finally, the statements meet the third and requirements fourth
Potter test. Because these requirements factually intertwined, are inextricably we will address them together. Delores’s statements event, related directly i.e.,
{¶
the startling
173}
what
her,
Jones had told
and Delores was with Jones when he
killing
admitted
woman who was found at the cemetery. The rationale behind Potter’s fourth
requirement
is to ensure the reliability of a
Id.,
declarant’s excited utterance.
496-498,
N.E.2d
and argues that Delores did not
an
have
opportunity
“personally observe the matters
declaration,”
asserted
her statement or
as
required by the fourth prong
test,
of the Potter
because Delores did not witness
kill
Yates or
body
see the
in the cemetery.
But the startling event was Jones’s confession
and not the murder
reason,
itself. For that
Jones’s
reliance
Smith is inapposite. Smith held that
the declarant’s statement “he
my baby”
killed
did not meet Potter’s fourth
¶
requirement because the declarant did not witness her baby’s death.
Id. at 43-
44. The facts also showed that
defendant,
boyfriend,
declarant’s
did not
¶
Thus,
Id.
4-5.
Smith
baby.
had killed the
declarant
tell the
Smith,
that he had killed
Jones,
told Delores
unlike
because
distinguishable
to that confession.
related
Yates,
out-of-court statement
and Delores’s
to Jeffries
reasons, we
that Delores’s statements
these
conclude
For all
803(2) therefore properly
were
under Evid.R.
excited utterances
qualified
to Morrison were
Delores’s statements
But because
into evidence.
admitted
evidence, must
into
admitted
improperly
testimonial under Crawford
or harmless.
was
the error
reversible
determine whether
a
beyond
error
reasonable doubt
Harmless
testimony relaying
admission of Morrison’s
hold that the erroneous
We
{If177}
doubt
beyond
harmless
reasonable
out-of-court
Delores’s
statements
“A
error
guilt.
Jones’s
constitutional
remaining
establishing
evidence
view
beyond
reasonable
that was harmless
held harmless if we determine
can be
able doubt found on the inside of Yates’s skirt. obtained from the victim and a stain swabs the cross a cross from Jones’s home was similar to police аlso recovered further provided to Jeffries eye. over Yates’s Delores’s excited utterance found Yates’s murder. linking evidence Jones to *30 Moreover, on his that he killed Yates when he testified Jones admitted 179}
{¶ they while that her was an accident that occurred own behalf. He claimed death However, Dr. that had been Sterbenz testified Yates having “rough” sex. bruising He on Yates’s an of time. found extensive strangled period for extended that injuries during autopsy. vaginal Dr. Sterbenz found neck face * * * A very rigid object.” twig large foreign have caused “a fist or may by been to six inches from the anal inside victim’s about four was also found rectum threatened, choked, her raped that had Finally, T.J. testified Jones opening. similar circumstances in 1990. under II. on the overrule foregoing, proposition Based we
{¶ 180} III, law proposition Evidence from wife. of obtained Jones’s {¶ 181} that his turned over to the that the of a cross wife argues plastic Jones admission his spousal privilege. violated police in jewelry cross plastic told that she had found her police Delores eye. from Yates’s police the one that the recovered
box
was similar to
trial,
Thereafter,
police. During
prosecutor
cross
gave
Delores
her
your
came
The one in
Delores,
recall
that cross
from?
you
“And do
where
asked
box,
from?”
jewelry
you
replied, “Phillip
do
know where it came
Delores
it to
it to
in
gave
me” and
Jones had
her
June
Jones did not
given
object
subject;
nor
its
testimony
suppression.
Delores’s
this
did he seek
Now,
argues that
Delores’s
that Jones
testimony
gave
both
2945.42,
the cross and the admission of the cross itself
R.C.
which
violated
“act
prohibits spousal testimony
by
[spouse]
about
done
either
any
presence
object
any privilege.11
the other.” Jones’s failure
waived
See
196;
State,
580,
Savage,
30 Ohio
Ruch v.
111 Ohio St.
St.3d
N.E.2d
(1924).
defendant’s character as to criminal “It may, Evid.R. however, motive, for be admissible other such as purposes, proof opportunity, intent, plan, preparation, knowledge, identity, or absence of mistake or accident.” Id. or “The admission exclusion of within relevant evidence rests the sound discretion of trial court.” Sage, State v. 31 Ohio St.3d N.E.2d 343 (1987), two of paragraph syllabus. testimony prove T.J.’s was lack mistake or admissible accident. arrested,
Jones told after he I’m police about this going say “[A]ll is that it Thus, was an testimony accident.” T.J.’s wаs material because Jones claimed Yates, that he had accidentally killed and the testimony properly was therefore prove offered the state its case-in-chief to absence of accident. argues testimony that T.J.’s admitted to improperly prove there,”
identity
therefore,
because he “admitted to being
“[identity
was not a
material issue in this case.” Because absence of
an
provided
indepen-
mistake
case-in-chief,
dent
basis
the admission of the
the state’s
we need
not address
T.J.’s testimony
whether
could also be
admitted
state’s
that,
least,
case-in-chief to
But
do
prove identity.
very
hold
at the
*31
event,
any
testimony
In
spousal
the admission of the
and the
violate
cross did not
Jones’s
privilege
gave
because
and
Jones
Delores were not married when Jones
Delores the cross.
Jones
gave
2006,
13,
they
Delores the
June
were not
cross
but
married until November
2006. R.C.
spousal
other’,
applies only
by
2945.42
ato
made
act
“communication
one to the
or
done
either in
other,
added.)
presence
(Emphasis
coverture."
of the
Coverture has been defined as
Bentleyville
Pisani,
v.
person,
“the condition
of a
man
or state
married
whether
or woman.”
100
517,
(8th Dist.1995).
515,
Thus,
App.3d
Ohio
654 N.E.2d
2945.42
394
R.C.
does not cover
Humes,
performed prior marriage.
1, 6,
or
See Bolen v.
App.
communications made
acts
94
to
Ohio
Evidence,
(5th
(3d
Dist.1951);
501.23,
Ed.2010).
Gianelli,
testimony raised
accident.
as
and absence of
testimony
identity
to both
Yates,
kind of
was
up
“[s]he
he picked
that when
Jones testified
her.”
dwelling
was kind of
fight
[another man]
from the
because
battered
and
injuries to Yates’s face
not cause the
claimed that he did
Accordingly, he
for
likely
was
responsible
also
guy”
testified that “some other
And Jones
neck.
to
injuries
of these
central
injuries.
presence
anal
rectal
The
Yates’s
and
identity.
directly implicated
them
having caused
denying
case and Jones’s
state’s
and
rape
rape.
link
murder and
T.J.’s
Yates’s
common features
Several
189}
{¶
knew,
then
women,
barely
to an
location. He
whom he
isolated
drove both
Jones
T.J.
choked,
anally rape
them.
to
beat,
vaginally raped
attempted
Jones
and
rectum,
Yates;
and
was found inside
Similarly,
anally raped
twig
anus and rectum.
the outer surfaces of her
bruising was found on
significant
differences,
the first
tends
rape
the evidence of
Although there are some factual
Thus,
of
the second
evidence
identity
rape.
perpetrator
to show
admissibility
proof
for
show
rape
requirements
of T.J. meets the
[Although
to render
charged
should not
so remote from the offense
conduct
be
near
require
they necessarily
them
does not
be
non-probative, logic
* * *
time.
to the
place
key
at
in both
offense
issue
than its
peculiar
value of
conduct
in its
character rather
probative
such
lies
to the event at issue.”
proximity
¶
46,
306,
Craig, Ohio St.3d (9th Dist.1984). DePina, App.3d 486 N.E.2d Ohio *32 time, 17-year while not separation significant, preclude does admissibility testimony. of T.J.’s The two events similar fact present patterns similar unique identify person features that tend to Jones as the who raped and murdered Yates. The of time length between the offenses is less in significant prison years. because Jones had been for 14 of the 17 Accordingly, rejected. this argument is Finally, argues testify, T.J. should not have been allowed to high unfairly jury against
because her ran a risk of prejudicing him. But the trial court provided jury following limiting with the instruction:
Evidence was
alleged
received about the commission of other acts
have been committed
in
involving
the defendant
That evi-
T.J.
received,
dence was
only
purpose.
received
limited
It was not
you may
it,
prove
consider
the character of
the defendant
order
to show that
he acted
with that
If
conformity
you
character.
find that
them,
the evidence of other acts is true and the defendant
you
committed
may consider that
only
evidence
for the purpose of
whether it
deciding
One,
proves:
accident, motive,
the defendant’s absence of mistake or
intent
purpose,
or
opportunity, preparation or
plan
commit the offenses
trial; or,
charged
two,
in this
identity
person
who committed the
scheme,
offenses in this trial through his
plan
system.
or
This evidence cannot be
for any
purpose.
considered
other
“A presumption
jury
exists that the
has followed the instructions given
to it by the trial court.”
v. Murphy,
554, 584,
65 Ohio St.3d
Penalty-phase issues V, Prosecutorial misconduct. In proposition of law Jones argues the prosecutor committed by improperly misconduct cross-examining Joseph Dubina, witness, a defense penalty phase. Dubina, Akron regional administrator of Regional Adult Parole
{¶ Authority, testified that Bill 2 passed Senate 1996 and enacted “truth in sentencing.” He testified that a person prison sentenced to life without the possibility of parole Thus, testified, will remain in until prison he dies. if of prison. never out get he will without parole, life receives sentence *33 questions: following Dubina the Trial asked counsel counsel): time, have the word (defense heard From time Q the You have been with sentence, thing. of or sort commutation of is that correct? twenty-six years; board parole authority, yes. A: Parole has know, years, in the last 15 you officially, as And until—as far
Q: up them off death row? anybody or let any pardoned governor No, years. of in the last 15 A: that I’m aware none the cross-examination, asked Dubina about During prosecutor the of sentences: commutation sentence, a sentences Attorney you asked about
Q: Okay. O’Brien jury mean[s]? Tell the what being commuted. or sentences authority pardon to commute
A: The has the governor they authority do that. forth court. And so have that were set sentence, when also, law, change their if there is sometime between And * * * it is can it well. change and when finished it is set row, they on somebody placed to death are death Q: So if is sentenced sentence, row, correct? governor could commute A: Yes. Dubina about another objection, the asked prosecutor Over defense inmate:
death-row of Spirko, I believe out Q: Are aware of defendant named you just today who row and his sentence County had been death Cuyahoga governor? commuted, today, in the commuted just paper I there was hot officially I heard or seen that. know A: have there, but I have not— of issues media attention lot you happened today? Q: That surprise wouldn’t authority that. A: No. He has do is whether the remarks prosecutorial The misconduct test substantial so, if affected accused’s they prejudicially whether
improper,
49 Smith, (1984). 13, 14, 470 rights. State v. 14 Ohio St.3d N.E.2d 883 trial, analysis touchstone of culpability “is fairness not the 209, 219, v. prosecutor.” Smith 455 102 71 Phillips, U.S. S.Ct. L.Ed.2d 78 (1982) . argues prosecutor’s questions Spirko’s that the about commuta- 611(B)
tion provides, were irrelevant and Evid.R. improper. “Cross-examination shall permitted be on all affecting credibility.” relevant matters and matters * * * Moreover, limitation of cross-examination within the “[t]he lies sound court, particular discretion the trial viewed in to the relation facts of case. Such exercise of discretion will not be in the of a disturbed absence clear showing Acre, of an 140, 145, abuse discretion.” Ohio St.3d N.E.2d (1983). *34 prosecutor The in asking committed no misconduct about Spirko
commutation, because
opened
the defense
the door to
line of
this
cross-examina-
tion when Dubina
governor
testified that the
not pardoned anyone
has
on death
Davis,
404,
row the last
years.
{¶ committed 203} misconduct its penalty-phase opening statement in stating:
What Ohio, has been determined in the state of as in some other states throughout the country, is that a citizen should have worry not about walking murdered, down the street and being raped case, and in this I would say specifically Susan Yates. That is why this case has such significance, connection, because it was in aggravated this murder was connection with this rape. argues prosecutor’s that the remarks improperly appealed to
{¶
204}
fears
passions
jury
by telling them that
the death penalty was
appropriate
free
because citizens should be
to walk the
not worry
streets and
about being raped and murdered. But Jones
object
failed
these remarks
Wade,
waived all but plain
182,
thus
error.
State v.
See
53 Ohio St.2d
373
(1978),
N.E.2d 1244
paragraph
syllabus.
one of the
No plain error occurred.
statements,
“During opening
counsel is accorded latitude
and allowed
‘fair
Diar,
comment’ on the facts to be
at trial.”
v.
presented
State
120 Ohio
50
Leonard,
¶ 145,
v.
104
565,
State
St.3d
¶
229,
com-
{¶ 209}
is a
These
party.
which the United States
international
law
treaties to
Issa,
49, 69,
{¶ 211} compelling because of the appropriate, death is argues penalty reject argument this for presented in his behalf. We mitigating evidence evaluation. independent we our sentence explain reasons EVALUATION INDEPENDENT SENTENCE law, indepen- must now Having propositions considered as proportionality appropriateness death sentence dently review Jones’s 2929.05(A)requires. R.C. Aggravating beyond circumstance. The evidence at trial established
a reasonable doubt that Jones murdered Susan while or committing Yates 2929.04(A)(7). attempting rape, commit R.C. The argues dissent that there residual doubt Jones murdered
Yates committing rape. while During testimony, Jones claimed that he did not intentionally and,
murder Yates claiming, so spun tale of gone awry. consensual sex Initially, was, the dissent asserts that Yates’s claimed, death “possibly ¶ Dissenting accidental.” at opinion 270. Eventually though, it concedes that jury easily conclude, “the could beyond doubt, a reasonable that Phillip Jones * * ¶ murdered Susan *.” Yates Dissenting opinion its final analysis, ¶ unequivocal: dissent is “There was no accident.” Dissenting opinion at 283. But the dissent takes the bait on Jones’s claim sex {¶ consensual 216} ¶ questions, “But a rape?” was there Dissenting opinion at 284. Tellingly, dissent uses its next
{¶ sentences describe Yates’s 217} poverty wonders, and substance it abuse. And point “[A]t some did draw she her ¶285. knife crack demanding more or his cash?” opinion at Dissenting Moreover, innuendo is inescapable and offensive. was precisely Yates’s station inсluding that she penniless was homeless and on. preyed life— —-that view, In our that makes penalty the death appropriate, more not less. event, In any body Yates’s was the raped best evidence her.
And it was the best evidence that he her killed while she resisted the rape. Jones’s DNA was found badly Yates’s bruised and torn vagina, which had also injuries suffered that were a “very caused fist or large rigid object.” foreign Yates injuries suffered similar Moreover, anus and rectum. the back of Yates’s head had suffered a pounding action from being ground slammed to the repeatedly. She clawed at trying her own neck her airway free while Jones vigorously relentlessly strangled her. body Yates’s story told the unmitigated and gruesome events place took graveyard that night. Her body screamed the terror that
Yates suffered: “I was rape.” killed while resisting voice; Jones silenced Yates’s the dissent body. seeks to silence her *36 trial, At medical and forensic experts gave appropriate voice to Yates’s
body. in by Hemmed the overwhelming evidence, medical and forensic dissent advances a completely theory: unfounded Jones abused corpse. Yates’s so, it doing questions whether the medical examiner could actually tell whether injuries Yates’s postmortem, were ignoring testimony relevant of the medical examiner on that very subject. Bruising differently manifests than before death death, after because after body “there no more is reaction.” (of all Jones’s things) contradicts speculation wild And the dissent’s {¶ 221} testimony itself. accidental and the killing was was that Recall Jones’s defense
{¶ 222} testified that he unequivocally Jones point, intercourse was consensual. On lest with her. And intercourse having vaginal was killed Yates while he strangulation unfairly was that his demonstration forget, Jones claimed inextricably and the intercourse strangulation prejudicial because intertwined, simultaneously. having occurred by death penalty aside Jones’s justify setting But the would dissent throughout consistently advanced that Jones has
dismissing very argument inconven- there, conveniently dismiss the To the dissent would get this litigation. testimony] that “at best declaring [Jones’s portions ient of Jones’s ¶ This is statement only Dissenting opinion true.” partially could be is, reasoning it with the dissent’s problem of the fundamental emblematic —that materially questions alters the and facts and therefore ignores invents “facts” us to the bottom brings it law—which apply us. And refuses settled before McGuire, 80 Ohio St.3d not a factor. State mitigating line: residual doubt is were, (1997), if there none here. syllabus. Even 686 N.E.2d circumstance, we are Mitigating Against aggravating evidence. this 2929.04(B). in R.C. weigh the factors contained upon mitigating called and made an unsworn statement. The defense mitigating called ten witnesses presented documentary family photographs. other evidence and Siddall, and' evaluated and psychologist, Dr. a clinical forensic James education- of Jones. Dr. Siddall reviewed Jones’s psychological testing conducted report. al, criminal-justice, mental-health and submitted written and records incarcerated of his life. He that Jones had been most noted 2, 1970, Dr. and was raised Akron. Siddall May born family in a troubled where there was domestic grew up testified violence, young. and divorced Jones was parents when family history psychiatric, has a Dr. Siddall testified Jones’s substance-abuse, Dr. stated that these criminal-justice problems. and Siddall began with generations paternal have moved across the problems alcoholic, an engaged His grandparents. paternal grandfather maternal maternal abuse, injection heroin. Jones’s poisoned fatal domestic died instability mental and alcohol use. She from some form of grandmother suffered raped who and killed one of murdering boyfriend, prison was sent learning from a father committed domestic abuse suffered her sons. Jones’s developed care as a child and through moved foster disability. His mother problems. alcohol-related
53 Jones attended in special-education public classes the Akron schools {¶ 228} not adjust and did well to school. He in a of grades was retained and was couple moved between schools several times. Jones expelled grade was in the tenth behavior, of truancy, because and disruptive failing grades. Jones juvenile. was incarcerated several times as a Between 1979
{¶ 229} 1988, was convicted receiving Jones of stolen destruction of property, property, and criminal to a damaging related series of auto thefts. Jones was convicted of theft petty disorderly conduct. depressed Jones was and made several attempts during suicide attempted hang adolescence. He himself when an was and took of pills overdose when he 17. 1989, an in As adult receiving Jones was convicted of property stolen
{¶ 230} 1990, and violating probation. he was of attempted convicted two counts of rape and years prison. served Dr. Siddall testified Jones had significant psychiatric interventions in prison. His mood and very behavior were unstable, and he tried to cut himself on numerous occasions. In Jones was paroled and was classified as sexually oriented offender. Jones used and marijuana alcohol youth. Jones resumed alcohol
using after he paroled but drugs. denied abusing Jones and Delores married November is also father of a teenage son and daughter, who were born during his with a relationship girlfriend. former Dr. Siddall testified reading ability the eighth-grade is at
level. Results of the Wechsler Abbreviated of Scale Intelligence test indicated Jones has a IQ full-scale which places him range. the low-average (“BNCE”) Results the Brief Neuropsychological Cognitive Examination were in the normal range, with exception subset, of one Excluding subset. this BNCE results showed no evidence of neurocognitive impairment. Dr. Siddall reported Jones’s “cognitive functioning including attention, concentration, recent and memory problem remote solving were intact.” Jones’s scores on the Structured Inventory of Malingered Symptoma- (“SIMS”) tology “significantly elevated” and indicated level “a of distortion exaggeration.” Test results on the Minnesota Multiphasic Personality Inventory-2 and the Personality Assessment Inventory showed same level of According Siddall, distortion. to Dr. the distortion these scores indicates that may have been attempting to draw attention to his situation or seeking the secondary derive benefit of to mental-health talking professionals and to possibly receive medication. Dr. diagnosed Siddall Jones with a mood disorder from a resulting ** * history depression
“serious and mood instability [that] associated diagnosed was also behaviors, attempts.” gestures, [and] suicidal repeated *38 antisocial-personality and an cannabis abuse and history a of alcohol with reported and has behavior psychotic demonstrated has also disorder. Jones hallucinations. history “a that has chronic testified Jones summary, Dr. Siddall
{¶ 236} while he treatment very expansive psychiatric required illness which has mental hospitalized community.” repeatedly Jones has been and in the incarcerated was antipsychotic and mood-stabilizing drugs, antidepressants, treated with and been history psychiatric a a family long in with was also raised medications. Jones violence, with the involvement abuse, and drug and domestic alcohol problems, affect problems these Dr. that severe system. Siddall testified criminal-justice very rather unusual cluster of family “a represent and most members of Jones’s psychiatric prob- that family.” opined in a He “certain problems given serious * * * based biologically are known to be lems, problems psychological certain * * * * * * in the generations across Jones transmitted genetically were] [and family.” a cross-examination, that Dr. Staf- acknowledged Dr. Siddall During Hospital,
ford, at Oakwood Forensic who treated Jones psychiatrist a Dr. falsely reported hearing he voices. that reported Jones admitted is His оutlook due concluded, at all. whole psychotic “He is Stafford “puts on stated report on.” Dr. also Stafford’s malingering put through years. mental health professionals with experience due to psychosis vaguely.” he clever to answer is because is He difficult to differentiate mother, Jones, testified that the defendant the defendant’s Henrietta all children stated that of her children. Henrietta youngest eight in married Jones’s father law substance abuse. Henrietta with the problems him in him in and remarried divorced siblings neighborhood and the “lazy eye.” was with His born surgery it. Jones received corrective him because of kids taunted and teased back a learner school and was held old. Jones was slow years when he was age. at a problems young mental-health grades. in the and third Jones had first his and had to have stomach eight years he was old gasoline He drank when for treatment at himself and was admitted hang Jones later tried pumped. Psychiatric Hospital. Mansfield post office for father worked at Henrietta testified that Jones’s variety jobs. a of other office also and held post Henrietta worked
years. provided for her children and home provided stated that she stable Henrietta Sunday and attended church as child Jones was involved for their needs. stated, “He very relationship with Jones has a close school. Henrietta very concerned when I get sick. He was always there for me take me to the doctor and like that.” things Jones also had a relationship close father. White, sister, Yolanda Jones’s oldest testified that Jones was teased picked on when he young lazy eye. because of the Jones told White him teasing made feel unwanted and unloved. Jones out acted on his feelings of inadequacy by suicide attempting couple of occasions. White remembers that Jones said that he was voices hearing around this time. did poorly school and repeated two grades. White does not believe that Jones received the help needed do well school. White also testified that all records, her siblings have criminal as does she. felony White has convictions for possession of crack cocaine and theft and misrepre- misdemeanor convictions for sentation. *39 Christy Harmel and developed Jones a relationship they
{¶ 242} when were both years children, 18 They old. have two Melany Phillip Harmel and Jr. Jones Melany’s Before birth Phillip infant, and when Jr. an was Jones sent to for 14 prison Christy years. took the children to visit in Jones while he was prison. Jones also wrote to his children he while was in prison and provided them with money that made working he Christy there. testified that Jones continues to touch the of his lives children counseling them аnd providing positive them with attitudes. Harmel, Melany years who was 16 trial, old at the time of the
{¶ 243} visited her father after he to in prison went They exchanged letters and photographs, and she gifts received from him at Christmas. he When 2004, from prison released in Jones visited her every day. provided Jones has her with fatherly advice about staying away drugs from avoiding and problems boys. Melany with stated that she would if continue see Jones he sent to is for prison the current said, offenses. She love for expressed her Jones and “He is a wonderful person.” Jr., Jones Phillip years trial, old at the time of the remembered Jones in
visiting prison couple on a of occasions and him talking phone on the numerous After times. Jones’s from prison, release saw Phillip Jones almost every day, they and a developed good relationship. Phillip dropped out of school
in ninth grade, but his father has him encouraged stay in school not and do stuff.” “stupid Phillip loves father and will continue to be there for him. Dubina, Joseph regional of administrator the Akron Regional Adult Parole Authority, testified that Bill passed Senate in imposed “truth in Therefore, sentencing.” testified, he a person sentenced to life in prison without the possibility parole will remain in prison until he dies. Dubina stated that if Jones sentenced to prison life without for parole eligibility years, he not parole would meet a until board when he years would be 67 old. eligibility for 25 parole without prison if life were sentenced Similarly, Jones a sooner. parole not board he would meet years, an specialist for ex- Patterson, employment an pastor J.C. best friends and Jones became in 2006. Patterson met Jones program,
offender consisten- impressed Patterson was together. and studied the Bible “good person.” is a says that Jones motivation. He cy and Akron, Jones met of God pastor Church Hargrove, David Jones he was troubled. because prayer asked at a church service. Jones attended him relief. Jones helped experience prayers their later said his attendance year, then regular on a basis for about church Hargrove’s “good guy” should that Jones sporadic. Hargrove testified became penalty. receive the death Akron, Bradshaw, People’s Baptist Church pastor Larry church a member service in 2004. Jones became
met at a church of a has the credentials He noted that Jones regularly. and attended services county jail. in the that he was learning visited after Bradshaw clergyman. time meet, discussing most of their spent Bradshaw and Jones they would When him provided occasions, ministered Bradshaw some On scripture. with encouragement. hаd an abusive statement, Jones stated In an unsworn
{¶249} occasions, and his on numerous domestic violence childhood. He witnessed *40 siblings fight. his His drugs. and also watched family abused alcohol Jones years he seven old. marijuana and when was gave stole cars Jones oldest brother home, His left and Jones eight. he was mother parents divorced when to kill aunt, and father. Jones tried grandmother, his his was then raised his was born with a eight years he was old. Jones by drinking when gasoline himself eyesight. he has with his lazy surgery, problems had corrective but still eye. He in he disability that not identified until was learning also had a was Jones sixth grade. out” as a family, “acting in his Jones started witnessing After the abuse He years juvenile hang in facilities. tried spent about three
teenager. Jones Psychiatric Hospital. and sent to the Mansfield himself was as an adult and described this years prison spent Jones almost during year for infractions one received 69 tickets experience as “hell.” Jones cells, mem- assaults, disrespected and staff He flooded prison. committed in the feud with was neck In Jones stabbed August bers. Thereafter, changed Jones and almost died. Aryan Brotherhood members help tried to security prisons improved. in the Jones behavior, and his status his from the same prevent making and them negative attitude other inmates with in the Universal received credentials as minister that he did. He also mistakes Modesto, California. Church finding employ- He had a difficult time paroled. raped he unemployment on when criminal record and was
ment because his employed leaving prison and was Yet Jones worked after and murdered Yates. year. Wheel for almost a by JR and Yates’s feelings present charges his about discussed
death: I mind my I did. I I could. live with it on
I can’t what wish change I wish bring hand God I can’t Susan. every day, my right above. back I could. * * * did, I sorry pray
I a bad I’m for what I and thing. know I children, now. really, my it is out of hands for her and her and family it, sorry I’m I for deeply and am you guilty, found me convicted did— actions. my folks, helped like I just keep helping
All I can to continue to try do is my elderly. mom when she became my get drugs, sister off he died his mother-in-law helped he father before said he his wife in a still loves nursing who is home. Jones also mentioned no has communication with her. although longer any final about his conviction: Jones then made some comments Susan, And, say sorry like to I am I did I would what lastly, children, I them pray give I and her pray family for her God this, me in they forgive I strength through hope could get maybe they time for what I did but won’t. sorry harm if I’m any against they
But I don’t have them even don’t. sister, I found I I restore life. And help my for what And did did. *41 out my prayed even for sister couple ago out weeks sister Susan’s it really happy in I—that me kind of because there the hall. And made that. out like positive “planted.” just glad was a I I’m worked “seed” all I say. That’s have to in allocution: following statement sentencing, Before made 256} * * * Honor, case, Your this is not a murder I planned never to murder * * *.
Susan It was an accident which I my told wife and others from the not, I beginning. could nor would not do so anything heinous to another * * * being. human fact that a yet remains life has been [T]he taken. I’m Unfortunately, responsible for that. However, I am else, for responsible anything nor shall I take * * * actions, for
responsibility Susan, another’s such beating raping aggravated her and murder.
[*] [*] [*] * * * Yates, To family of Ms. Susan I’m sorry your loss. I trust families, God will do something positive for both Christian Yates and Jones family.
Sentence evaluation We find nothing in mitigating the nature and circumstances of the battered, offense. Jones raped, and murdered Susan Yates in an Akron ceme- tery and fled the scene. These facts establish a horrific crime that any lacks mitigating features. Although Jones’s character offers in nothing mitigation, give some
weight to history and background. grew up family troubled where his parents fought and argued frequently. Jones was also raised family with a history of mental-health problems, abuse, alcohol drug involvement with justice the criminal system. Jones has a history chronic illness, mental which required psychiatric addition, treatment. Jones had a difficult childhood. He was taunted and teased as a child because he had a lazy eye. Jones had difficulty school. Jones was also involved the criminal- justice system early an age and has spent most of his life incarcerated.
(¶ The statutory (B)(1) mitigating factors under R.C. 2929.04 include (victim (B)(2) inducement), (duress, coercion, (B)(3) (men- or strong provocation), (B)(4) tal defect), disease or (youth of the offender—Jones was 36 at the time of (B)(5) (lack offense), (B)(6) significant record), of a criminal (accomplice only), (B)(7) factors). (any other relevant (B)(1), Review of the evidence shows that (B)(6) (B)(2), (B)(4), (B)(5), and do not apply. 2929.04(B)(3) (B)(3) The R.C. mitigating factor is not applicable.
applies when “at offense, offender, the time of committing the because of a defect, mental disease or lacked substantial capacity appreciate criminality of the offender’s conduct or to conform the offender’s conduct to require-
59 (B)(3) presented qualified No was that Jones for merits of the law.” evidence factor. and his history problems of mental give weight But we some 2929.04(B)(7). “other” factors under R.C. intelligence mitigating as
low-average
a
was
with
family
diagnosed
has
of mental
long
history
problems.
Jones
Jones
resulting
depression. Although
from
we note
evidence
mood disorder
hallucinations,
also
reported
we
psychotic
Jones demonstrated
behavior
that he
indicating
falsely reported
other evidence
that Jones
acknowledge
may malingering.
hearing voices
be
(B)(7)
had a
testimony
as a
factor to
give weight
We also
Jones
troubled childhood. But see State Ohio St.3d ¶ (decisive 864, 265 to defendants with unstable weight given 892 N.E.2d seldom childhoods). give weight history to his of substance abuse. We some no with a abuse. But there is diagnosed history alcohol cannabis his ability his to control drugs significantly evidence that and alcohol reduced night rape actions on the and murder. (B)(7) addition, factor to that Jones give weight we family has care to support provided
shares love and
members and
512,
{¶
allocution,
and mur
beating, raping,
But
denied
responsibility
might
that we
dering
negate any mitigating weight
Yates.
Jones’s denials
Hunter,
otherwise
for his
of sorrow. See State v.
131 Ohio St.3d
give
expressions
¶ 205.
67,
stance her, The aggravating Yates circumstance. raping grave Jones murdered while Therefore, hold the death pales comparison. evidence mitigating is penalty appropriate. case is imposed We also find that death sentence this imposed to the in similar cases.” R.C. disproportionate penalty
“excessive or
2929.05(A).
when
to death sentences
penalty
proportionate
compared
2929.04(A)(7).
Carter,
cases
R.C.
See
89
approved
rape-murder
in other
under
Mason,
170-171,
345;
144,
v.
St.3d
Ohio St.3d at
734 N.E.2d
82 Ohio
(1998);
McGuire,
N.E.2d
80 Ohio
Conclusion *43 We affirm Jones’s convictions and sentence of death. Judgment affirmed. Lundberg Brown, JJ., and McGee concur. Stratton, O’Donnell, Cupp, J., in judgment only. concurs Lanzinger, J., dissents.
Pfeifer, J., dissenting.
Pfeifer, I would reverse Jones’s convictions and order a {¶ new trial. Every 268} criminal defendant is entitled to a fair trial. It is one of the most basic tenets of our society and our constitutional history. Jones did not get one. He is not trial, entitled to a perfect just a fair It one. matters not how sordid are the crime; details of the nor should it by stand, matter that taking the probably undermined his own by defense weaving a tale that at best could be only
partially true. The majority’s upholding Jones’s convictions basically a lengthy and justification
convoluted for intentional and needless error injected into the trial of by the prosecutor and allowed by the trial judge. It is one thing for this court to determine the aggressive conduct of prosecutor led harmless error. It is quite another matter when open the door for continued pushing at the edges Evidence, of the Rules of statutory privilege, and constitutional by duties excusing, rather than rejecting, introduction of evidence crosses the line. exactly What was the state’s theory
{¶ the actual 270} events on the night April 2007, that led to the death of Susan Yates and the conviction of Phillip Jones for aggravated murder with a death-penalty specification? One assumes the state an operative case, and successful theory of its but it is not revealed in the majority Rather, opinion. we are left with the details of the condition of Yates’s body dead a portion of Jones’s explanation occurred, of what sex, consensual by rough followed or asphyxiation erotic and the possibly accidental death of Susan Yates.
Fair-trial Issues prosecution’s use of life-sized doll representing Susan Yates provided imaginative courtroom drama. The transcript suggests that Jones was required down step stand, from the witness doll, lie on the and demonstrate for the jury how he choked Yates while having vaginal intercourse with her. Having been objection, allowed over judge, to conduct this eye-popping demon- George Dr. recalled The prosecutor finished.
stration, wasn’t the prosecutor doll, demonstrating on the examiner, lay then down Sterbenz, the medical left the Dr. Sterbenz enough. That still wasn’t testimony for the doctor. neck, and asked the doll’s hands around with his stand, the doll straddled witness thisWas testimony. understood Jones’s properly he had whether prosecutor according Not Jones? to the defendant prejudicial demonstration thrice-enacted majority. to the entire prosecution’s that the inquiry fair-trial point It is at this who conducted Sterbenz, examiner the medical Dr. play. into
case comes strangulation. asphyxia by from Yates, that she died concluded autopsy Susan impossible that it would be Dr. Sterbenz the view of always apparently It was Dr. Sterbenz choking her. a side effect injuries as Yates’s throat cause *44 caused have been and throat could to Yates’s neck injuries that the postulated a the use of a head lock or action, from presumably skin-on-skin only by a violent use He did not object. some twisting with by involving tightened cloth ligature doll forced on the Thus the demonstration theory. either the doll to demonstrate Dr. by by prosecutor the staged again state and then by on the It jury. the than to inflame other purpose served no rebuttal Sterbenz’s anything. not probative 291p5.b2 and Excited Utterance Privilege Spousal R.C. privilege brief, concept spousal to the the state refers In its merit mind, sought prosecutor attitude in the common law.” With “a relic of the wife, Delores, from 2945.42, prohibited have which could R.C. ignore matter. As the Yates regarding told her anything Jones had testifying about body was case, day thаt the Susan Yates’s testified Delores part of state’s that was something about discovered, had discussion she and her husband later, to the home of or so she drove that an hour then testified the news. She state, everything her and, in an told Jeffries excited friend Charletta Jeffries that after further testified She program. after the news husband had told her had conversation she had about the by telling Charletta she unburdened herself to someone speak and asked husband, police then called the with her she Delores, describing cemetery. Finally, in the dead woman charge about the that Jones Richard Morrison details had told Detective upset, herself as still stand, left on the jurors and the left the At this Delores point, told her. seats. respective of their edges majority offers narrative that the point It is also at this was not asked—and “Delores observation: tongue-in-cheek
following apparently
Therefore,
her and Jones.
between
to the communication
testify
did not
—as
follows
What next
spousal privilege.”
not violate Jones’s
testimony did
Delores’s
attempt.
would
Flying
not even The
Wallendas
of faith that
leaps
are several
First,
majority attempts
justify
wrongly
decided
Perez,
122,
rest of story. the salacious Charletta quickly Jeffries informed the jury Delores had come to her home and confided that her husband had told her that Susan, he had murdered a woman named who had been found in cemetery. thereafter, Soon the prosecution put Detective Morrison on the stand to repeat Delores’s account of putative privileged conversation between herself and the defendant regarding Yates’s death. The Confrontation Clause the Sixth Amendment to the United
States Constitution must be addressed before the court can condone the hearsay testimony of Jeffries bis and Morrison about defendant Jones’s conversation with majority wife. The correctly determines that Delores is purposes unavailable for of the Confrontation Clause because Jones spousal invoked the It privilege. correctly further determines that Delores’s statements to Morrison were testimo- nial and that their admission into evidenсe violated the Confrontation I Clause. *45 disagree majority’s the conclusion that the admission was harmless error. The next is leap awesome. The majority examines Delores’s disclo- sures to Jeffries and that determines Delores “would not reasonably believe that * * * [her] statements to her friend would be available for later at use trial.” ¶ Majority at opinion 162. Never mind that Delores had immediately thereafter police summoned the detective to Jeffries’s home using Jeffries’s phone. Ignore the fact that repeated Delores the story to Detective in Morrison Jeffries’s home presence the of Jeffries. Does the majority actually believe Delores Jones told Charletta Jeffries that her husband told her that he “killed that girl the cemetery,” expecting such news to remain their little police secret without or No, court involvement? the majority deftly concludes: “Delores’s statements to testimonial, Jeffries were not and their admission into evidence did not violate the ¶ Confrontation Clause.” Majority opinion
(¶ leap. Well, Just one more Hearsay. not quite. More like hearsay 279} hearsay. about prohibits Evid.R. 802 hearsay testimony. Evid.R. 803 defines specific exceptions, including the excited-utterance exception found Evid.R. 802(2): “A relating statement to a startling event or condition made while the or condition.” by caused the event was the stress of excitement
declarant under to Jeffries reported No. What she event or condition? Did Delores observe an a should be told her what information that her husband had was conversation reported Delores When statutorily privileged communication. testified, Jones’s Jeffries, hearsay. When Jeffries Phillip words to Jones’s testimony that Jeffries’s hearsay. Finally, to determine words became double of allowable, of the death concludes that the circumstances majority was rather, event; hearing event startling startling Yates were not the Susan Hence, magically is Delores’s confession about confession statements. Jones’s into spousal from conversation an excited-utterance privileged transformed legal prestidigitation. That’s neat hearsay pretty rule. exception Testimony Other-acts trial, testify that present state allowed to T.J. to During the years about 20 old. The state was raped when Jones was Jones made at the time of the allowed to T.J.’s records hospital introduce was, course, testimony highly of rape. prejudicial T.J.’s attempted 404(B) of other (prohibiting and is Evid.R. evidence prohibited defendant crimes). testimony was a majority agrees, The T.J.’s argues, state absence of accident. exception relating proof identity proof proper man. admitted identity readily Proof of is straw or accident has the death Yates. Proof of absence mistake caused of Susan attempted rape of T.J. Jones 17-year-old little rational connection Jones’s too much by accidently applying choking that he Yates’s death claimed caused erotic asphyxiation during on her throat while consensual pressure performing death only that Yates’s with Yates. best and evidence vaginal intercourse attempted from Dr. conviction for was not accidental came Sterbenz. ever as an Evid.R. was far more in time than this court has allowed rape remote 404(B) rape only attempted It informed the that Jones had exception. jury hands, lock, not with a or head ligature and that he had choked her with his T.J. T.J.’s prosecutor earlier. The conclusion tendered years character and criminal purpose propensity for the Jones’s bad proving 404(B). Furthermore, majority states that inescapable violates Evid.R. though attempted rape. was convicted of vaginally T.J. even raped a Reasonable Doubt Beyond Residual Doubt Proof *46 herein, jury fair-trial infractions outlined the convicted by Assisted they all he be sentenced to death. Were on counts and recommended that in 2007? cemetery occurred actually April correct? What and went acquired crack cocaine and beer claimed he and Susan Yates some blanket, in the consensual cemetery, eventually engaged to the sat on Yates and erotic rough of into vaginal request intercourse that escalated Jones, asphyxia According sex. that activity accidently led to Yates’s death applied when he too much choking pressure. any part Jones denied he had in vaginal and rectal damage Susan Yates that was revealed Dr. autopsy. Sterbenz’s testimony Given the unrebutted of Dr. regarding Sterbenz the cause of confession,
death and plus of testimony Jeffries and Detective wife, Delores, Susan, Morrison Jones had admitted to his that he had killed conclude, jury easily beyond doubt, could a reasonable that Phillip Jones murdered Susan Yates on the night April 2007. There was no accident. But rape? was there a Jones testified he had known Yates for some time, had taken her to his there, home to shower when his wife was not and had given her in money for food He past. testified that on the in evening question, they acquired beer, had crack cocaine and had driven to cemetery, blanket, had out a spread and had a good time until she died. Yates had alcohol and system cocaine at her death. Because there was no evidence struggle automobile, of a in Jones’s this part is plausible. What happened tragic next was for Susan Yates. It would not be reasonable to assume any person involved, besides Jones was but the order of events is critical. At some point, Jones killed Yates. Because Jones’s testimony on this subject credible, is not what set him off is unknown. plan Was that his from the beginning? Nothing in his past indicates a propensity for murder. Was the idea, rough hers, sex his abuse, and did it turn to rape, then then murder to detection? escape Or at some point did she draw her knife demanding more crack ensue, or his cash? a fight murder, then, Did then in a rage, abuse of corpse? Yates’s it possible Was for the medical examiner to determine whether gross injuries vagina to her postmortem? and rectum were If Jones had Yates, her, consensual sex with then murdered and then in a rage abused her body, there would be no death-eligible specification. dilemma, This this lack certainty about critical events
unfolding
crime,
is residual
It
doubt.
is not often
present
death-penalty
McGuire,
cases.
State v.
80 Ohio
(1997),
St.3d
Conclusion What Happen Should Now? With the exception cases, of death-penalty this court views the crimi-
nal-justice system 30,000 from feet. Out the tens of thousands of serious *47 only we review year, handle each judges prosecutors
criminal cases Ohio to enforce judges by requiring fairness to ensure responsibility It is our few. accused every citizen afforded rules, statutes, protections constitutional review, case there through system of this oversight As we exercise of a crime. prosecutors, trial judges, constant our direction singular has been a or do it over. right counsel: Do defense doll, do-over, be a without a fair trial. It should get did not conversations, and, most spousal privileged about the any
without prosecutors will embolden To affirm testimony. assuredly, prior-acts without and to convictions to ensure edgy path an aggressively follow increasingly little fear of reversal. accommodative with to be encourage judges I dissent. Di- and Heaven Walsh, Prosecuting Attorney, County Bevan Summit Sherri for Martino, Attorney, appellee. Prosecuting Assistant Whitney, appellant. for A. and Lawrence J. Ray Nathan Holding Shelly Attorney General, Appellee, ex rel. Ohio State v. Appellants. Company Shelly Materials, Inc., al., al.; et et Holding Atty. Shelly ex rel. Ohio Gen. [Cite Co., 65, 2012-0hio-5700.] St.3d Ohio 2012.) (No. 16, 2011- Decided December 2011-0252 Submitted November Cupp, J. calculating proper method This asks us determine appeal with the facility noncompliance against levied an industrial penalty
civil be