*1
Appellant.
Ohio, Appellee,
Kirkland,
of
Kirkland,
[Cite as
{¶ Anthony 1} Kirkland, was of aggravated convicted girls murder two in Hamilton County between 2006 and 2009. He was also convicted of the murder two other women. trial, On the first morning of Kirkland voluntarily pled guilty
{¶2} of Mary murders Jo Rolison, Newton Kimya well as as to two counts of abuse a corpse. The jury convicted all remaining charges, including aggravated murder with death specifications for the deaths of Esme K. C., and Casonya recommended sentence death. accepted The trial court the recommendation and sentenced Kirkland accordingly. For explained below, the reasons affirm we convictions and
sentence.
The State’s Evidence Trial On the night May around 11:00 p.m., 14-year-old Casonya C. left the home her grandmother, Patricia C. took bag, She her book gym shoes, and cell phone with her. Her grandmother Casonya assumed meant to spend night at her mother’s house. Around midnight, Casonya called her friend Tania H. from the front
porch of her friend’s Casonya house. Tania told already she was in bed and did out, not want to go Casonya so said she going back home. house, leaving After Tania’s house, she headed for her grandmother’s
Casonya spoke phone on the with her boyfriend, B. Ra’Shaud The two were having argument when suddenly phone cut off. Ra’Shaud tried for three days reach by telephone, but he never spoke again. mother Casonya’s school. up at did not show morning, Casonya The next Casonya’s phone cell calls daughter, had not seen her that she
indicated *2 to voicemail. went the to 4, 2006, police Patricia C. called p.m. May 1:30 on
(¶ approximately At 8} missing. her was granddaughter that report body a discovered 9, 2006, doing landscaping city workers May On
{¶ 9} area, in a secluded wooded body old The was located pile a of tires. underneath end of a dead-end road. from the feet down the hillside ten approximately much the decomposed, so so heavily The was charred and body {¶ 10} The front body. or gender determine the race officer could not responding a sock only clothing body on the was recently knocked out. The teeth had been one foot. on road, pit, a burn a charred site found
(¶ police the end the beyond Just 11} down the dragged burned before was body that the was they where believed piece a they long And found pit under the tires. near hillside and buried a end, stir timber, poker one to have been used appeared charred at the fire. rape a examination because pathologist The was unable do forensic
{¶ 12} were also unable completely Investigators area charred. pelvic was almost hands fingernails DNA under the victim’s because look for evidence completely forearms were charred. comparison by as that of C. body The was identified positively
{¶ 13} x-rays. of dental 15, 2006, remains of later, smoking the still hot and One month on June
{¶ 14} of a dead- 35 feet from end body approximately a human were found second body. from the Tests indicated foot was found 37 feet right end street. The paint fluid or thinner. using lighter the fire was started either a of death but did The was to determine cause autopsy unable already body was set fire. that the victim was dead when demonstrate by comparison of Mary as that of Jo Newton body eventually The identified dental records. of a third victim were discovered In the skeletal remains spring dead-end street. The bones were heavily
in a area at the end another wooded scattered, found. the hands and feet were never neck caused injury sharp-force The cause death was face, on the the front of burning showed traces of instrument. The bones cutting bones, A determined that anthropologist bones. forensic thigh hip woman, 30 and probably between an African-American likely the victim was most years However, of age. identity nearly victim’s remained unknown for one year. On the of Saturday, 13-year-old afternoon March Esme K. left home to go jogging, her and a wearing purple iPod watch. Esme K.’s mother
called 9-1-1 4:21 report missing. p.m. Esme nearby Police searched abandoned houses and Eventually, woods. two man,
canine-unit spotted Kirkland, officers later as Anthony identified sitting underneath some fir trees in the nearby woods. The officers saw knives from his protruding pants pocket, they left so
disarmed him and searched him. They found watch and an purple iPod in his pockets. Etched on the back of the iPod were the words “Property Esme [K].” placed officers Kirkland in handcuffs. Kirkland initially gave
name as Anthony Palmore. He claimed that he had found the watch and iPod the The police woods. read Kirkland his Miranda rights. Efforts to identity confirm his through police databases were unsuccess-
ful, minutes, but after about 20 gave Kirkland his real name. As the search for continued, Esme police transported Kirkland to the police station. At around 3:00 in the morning, searchers
{¶ found the of body 23} Esme K. in the woods. She was except naked for her shoes and socks. Her body was propped up branch, against a tree with her arms crossed and her legs spread. groin, Her thighs, inner left and hand had all been severely burned. The official of cause death asphyxiation
{¶ was to ligature 24} due strangula- tion, confirmed bone, fracture of the hyoid ligature neck, marks on the petechiae on her face consistent with a long struggle. There was also of evidence premortem trauma to Esme’s vagina consistent with rape. Police found Esme’s top days few later in lot parking of a nearby
vacant building. The shirt had burn holes and had been cut open in the front. A trail burnt led clothing police to a white plastic bag containing Esme’s grey sweatpants and underpants. zipper pocket sweatpants burned, was but the underwear not. Investigators took DNA samples hands, his penis, and a shorts,
stain on his boxer cases, and in all three DNA consistent with Esme’s was found. Partial shoe prints the woods were consistent with the type of sneaker Kirkland wore at the time. On morning of March Detective Keith Witherell interviewed
Kirkland. Witherell had previously interviewed Kirkland on March connection with the homicides of Casonya Mary Jo. During interrogation, Kirkland a photograph viewed said he did not their the nature of Mary Jo and that he knew admitted her. He recognize with death. anything to do sexual, having but denied relationship was murders, Kirkland to tying forensic evidence had no police 28} {¶ were they Consequently, from Kirkland. admissions and no eyewitnesses, no him. charge to arrest or unable A video four hours. lasted over interview The first March 2009 29}
{¶ jury. played into evidence and introduced recording of that interview was multiple, inconsistent versions interview, offered During that 30} {¶ arrest, the reason for his outset, confusion as to professed he At the events. outstanding him because they brought thought officers that he telling boyfriend and current ex-girlfriend’s altercation relating warrants his missing girl. because no he was there that he had idea else) (or anyone in the seeing girl jogging a young denied repeatedly He if even as he did not He acted near he was found. vicinity of the reservoir where learn that the surprise he missing professed And girl. the race of know walking upon he stumbled while radio,1 continued to insist which he watch and woods, girl. missing to the belonged at the meeting admitted Esme questioning, After further He said that the he could take them her. and told detectives that reservoir drop caused Kirkland to that the collision literally ran into one another and two kicked her. multiple times and punched He Esme temper. and lose his beer have left her alive. But he claimed to found, changed had body that her been After told Kirkland detectives events, Kirkland then admitted *4 memory to have no story. claiming First
his injured he her But to claim that left the woods. he continued chasing Esme into clothes when he left wearing that she was alive, repeatedly insisted but he her. continued, have left Esme alive Kirkland claimed to As the questioning
{¶ 34} challenged, Kirkland confessed as Pedro. But when only a man he knew to had returned dead. He admitted he knowing all that she was along body. the murder to move some hours after reservoir But when asked my hatred.” said Esme died “because Kirkland 35} {¶ concluded, her, no, as interview still said if he killed he directly had from body learned the location insisting that he had Kirkland was still Pedro. later. two hours began approximately A of Kirkland second interview Mary about Jo and Kirkland time, questioned Hilbert
This Detective William was in fact Esme’s iPod. Kirkland called radio What initially sessions, Casonya. The interview two lasting occurred the first two and about hours, one-half and the second less than 90 minutes. recordings Video those evidence, interviews were introduced into and redacted version played was the jury. gave following Kirkland Mary account of Jo’s murder:
{¶ 37} He met Mary first at stop Jo the bus across the street {¶ 38} downtown Justice Center. She worked as a prostitute support drug to habit. just She out getting was of the Justice Center when Kirkland met her. He and Mary had together Jo sex couple times. died, day On the she picked her up in the Hill College area.
They to a liquor went store together, Rally’s then to a They for food. took some drugs. Next they went girlfriend, house Kirkland’s who was at work at the time. drive, As they continued to an argument broke out. Kirkland choked
Mary to death Jo from behind. Then he to drove Avondale and her dumped body at the of a end dead-end street. He had a can in gas he vehicle that used to body set the on fire. Kirkland, According he the body burned because fire purifies and burning body “a proper was Vikings burial” like the It did. was time, still daylight around, but no one was so Kirkland stayed to watch the flames. Hilbert shifted the conversation Casonya, and Kirkland offered this
account: He first saw at the top bridge of a that crosses Interstate 71 near High Walnut Hills It School. was around 1:00 in the morning. Kirkland sitting was marijuana. smoking He Casonya having heard an argument with somebody phone, her cell and when him smoking, she saw hung up she phone. Kirkland, According to Casonya asked him about the marijuana, that, if
asked she was old enough for and she answered enough she old to be doing a lot of things. That led to a conversation which gave her agreed $20
go as He high says the money was to pay just $60. talk. two had an argument about, according Kirkland, “girls playing games.” Casonya threw *5 money the back at him. At that point, got Kirkland mad grabbed Casonya. and him, She kneed and he strangled her. altercation, Before the pair had crossed the bridge together
{¶ 45} and to Victory Parkway. there, descended From body Kirkland carried her to dead a her, wooded area he where burned using fluid took lighter nearby he from a body and covered the with body the hill burned down He carried her house. then long. all body night stayed He with was scared. tires because he murder: account of Esme’s following Kirkland then offered {¶ 46} reservoir, afternoon, he near the walking in the as was At 8:00 around {¶ 47} Kirkland. He only enraged which was apologetic, ran into him. She Esme names, her what music her, to know name and her and demanded called punched woods, tripped he into the she chased her point, to. At some listening she was her. fence, punch to and choke and he continued over a small first, Esme. But then he told Hilbert that raping At Kirkland denied her,” wanted, hurt and he just I don’t “she do whatever Esme said that would However, complete- penetrate to her have with he was unable to sex her. asked her death with manually. him Then he choked to her masturbate ly, so he made not said she tell did not believe her when she would his hands because he bare interview, had a to rag that he used subsequent In a elaborated anyone. failed. to kill her with bare hands Esme when his efforts strangle stayed talking tree for two hours body against her a and propped up He to a fire her clothes as an her, using to Then he tried start apologizing her. lighter perform to find fluid “to the ritual.” It was dark when he left accelerant. (but eventually can returned the woods garbage He some food from a and ate until the found him. body), asleep police not the where he fell the jury of Kirkland —also shown to A third interview —commenced interview, him detectives asked about unidentified minutes later. first, At Kirkland claimed have body spring found burned then, discussion, great And deal of only three victims. after killed * * * announced, “I, totally. honest It was one more.” three —I wasn’t as a when he working prostitute her as Kim. She Kirkland knew $40, her had they in December 2006. He sex. Reading paid met her on Road out, pulled together, an broke argument As continued drive they He dumped Kim in with her own knife. the car over. He stabbed the throat body sprayed He out on a bed wood and body a dead-end hill. laid up later, fluid, to find body. He returned few weeks then covered the lighter bones place, leg missing. still but the skeleton using provided by those remains information identify Police tried to died, she Kirkland had had Kirkland, that on the she including night fact they in Clifton who told them could a uniformed officer police encounter with worth investigator An reviewed month’s public park in a after dark. be to the state requests police sent Cincinnati license-verification showing records 22, 2006, officer police that on December The search revealed California. belonging on a driver’s license "inquiry in Clifton ran an California working *6 Rolison, Kimya Iamaya Bodi date of matched the roughly Corrine whose birth one seeing family Kirkland remembered on her license. The Rolison confirmed that Kimya body. was Dental confirmed the missing. identity records confessions, After the state finished the of Kirkland’s playing videotapes objection, and Kylah testify. Kylah over the defense’s the state called toW. years time, Kylah testified that she was 13 old in the fall of 2007. At the was her living with mother. her who Kirkland was friend of mother’s would stay sometimes with them. Kylah that on September testified she home from arrived
school at about 3:30 in the afternoon found apartment and herself alone the with Kirkland. Kylah hungry, so she decided to hamburger. cook herself a She left the food on cooking low to into her to talk go bedroom to a friend on the telephone. Kylah, door, According knocked her on bedroom then door,
opened dresser, put hamburger top room, on of her and left the closing the door him. Kylah behind continued her telephone conversation. But a later, short opened time again, her door and time his “bottoms” were and privates down were exposed. Kirkland stood in the doorway entering. room, without Kylah repeatedly told him to get out which he did. eventually Five later, or ten minutes Kirkland returned again. He was still
exposing himself. This time he was carrying piece approached and paper, Kylah and held the so paper read, she could it. read The note “I want be the you first to eat out pay you.” and I’ll Kylah leave, him telling continued Kirkland did. But he came to her room a fourth time. time
{¶ This he was dressed. 57} He room, walked into her dresser, placed five dollars on the and walked out. do, Kylah stayed Unsure what to phone with her friend for another ten minutes then apartment. left the When she told her later mother what had happened, her told get mother Kirkland to out the apart- ment, then women two went to the local police report station to incident. Kirkland was eventually convicted of importuning and about served one year in prison, a fact did not until penalty phase. learn Case Defense The defense not call did during phase. witnesses the guilt History
Procedural the Case March On state filed 12-count against indictment Kirkland. The indictment included four counts of aggravated murder death- murder aggravated Kirkland with charged Count Two specifications. penalty death-penalty rape, commit committing attempting or C. Casonya while with the 2929.04(A)(7), charged Kirkland and Count Four R.C. under specification to commit attempting or committing while C. aggravated murder *7 2929.04(A)(7). “course- and Four included Counts Two robbery, R.C. aggravated 2929.04(A)(5). R.C. specifications. death-penalty of-conduct” aggravated- and robbery contained rape and Eleven Counts Nine 61} {¶ of K. Each of these counts the death Esme charges in connection with murder escape-detection-or- as well as specification included a also course-of-conduct 2929.04(A)(3). under R.C. apprehension specification One, attempted Count additional counts: eight The indictment contained Six, Three, Casonya; of Count aggravated robbery Casonya; of Count rape K.; Newton; of Count rape Esme Eight, attempted of Count Mary murder Jo Five, Seven, Twelve, K.; gross and Ten, of and Counts robbery Esme aggravated corpse. a abuse of corpse a indicted murder and abuse of separately Kirkland was indictments were consolidat- objection, to Rolison. Over two
relating Kimya ed for trial. a to trial, plea guilty entered of morning voluntarily Kirkland
(¶ On the 64} and Mary Jo Newton charges relating murder abuse-of-a-corpse and all the guilty Kirkland Rolison. March found Kimya On recom- counts, including death-penalty specifications, all the and remaining merged the court purposes sentencing, of death. For mended sentence felony murder while specifications with the escape-detection specifications Kirkland for the robbery. The court then sentenced to death attempting rape or committing attempting rape K. or commit murder of Esme while aggravated committing attempting C. or for the murder of while aggravated years to 70 to life for the The court also sentenced Kirkland robbery. commit Kimya Rolison. Mary murders of Jo Newton
Legal Analysis and the aggravated reversal of his convictions of murder Kirkland seeks propositions in ten of law. sentence death I) testimony Kylah of Law (Proposition W.’s
1. The admission of law, trial court argues proposition his first 404(B) was 13 Kylah testify W. to when she by allowing violated Evid.R. old, oral engage himself to her offered years exposed $5 sex. trial court has discretion in the admission and exclusion of broad 404(B). Morris,
evidence, including evidence of other acts under Evid.R.
22.
the trial court
Unless
“clearly
materially
has
its
defendant has
preju
abused
discretion and the
been
thereby,
court
the exercise of such
diced
should be slow interfere” with
Hymore,
discretion. State
N.E.2d 126
We
“unreasonable,
have
arbitrary,
defined “abuse of discretion” as an
or unconsciona
discretion,
use of
or
judge
ble
view or action that no conscientious
could
undue
“mini-
instruction
tion to the family might member judge told the that Defense counsel mitigation phase. Those statements cooperate. would not family that the testify reported but later support record does not jury. of the presence outside the were made of ineffective assistance. allegation testimony of Kirkland’s concerns the alleged deficiency The second
{¶ 74} Bresler, testified witness, who psychiatrist, Dr. a forensic Scott mitigation expert psychopaths have Dr. Bresler testified Kirkland is a psychopath. level is associated and that a low serotonin levels reduced serotonin cross-examination, that no brain Dr. Bresler conceded On aggression. impulsive alleges Kirkland now on Kirkland. performed tests were scans or chemical lack of tests for arrange possible blood failing ineffective for his counsel was serotonin.
83
counsel, a defendant
of ineffective assistance
allegation
an
prove
To
{¶ 75}
668, 104
466
S.Ct.
Washington,
v.
U.S.
Strickland
two-prong
test.
satisfy
must
(1984). First,
performance
that counsel’s
he must establish
2052,
674
80 L.Ed.2d
And
Id. at 687.
representation.
of reasonable
objective
standard
fell below
A
him
Id.
prejudice.
caused
second,
performance
that the deficient
he must show
that but
probability
showing a reasonable
prejudice by
establish
defendant can
v.
State
have been different.
errors,
of the trial would
the result
for counsel’s
(1989),
three of
paragraph
To
outside
words,
supply proof
need to
In other
he would
his case.
support
would
Madrigal,
record,
appeal.
cannot consider on direct
which this court
(2000).
390-391,
N.E.2d 52
87 Ohio St.3d
of law.
proposition
overrule Kirkland’s second
We
III)
of Law
(Proposition
Prosecutorial misconduct
law,
miscon-
alleges prosecutorial
proposition
In his third
closing arguments.
course of penalty-phase
duct
concerns,
implicate due-process
misconduct
Allegations
prosecutorial
“
trial,
culpability
of the
not the
analysis
of the
is the ‘fairness
and the touchstone
13,
Kirkland had to the murders two a sentence of death for the other urging Rolison. return Mary the murder of Jo and murders, jury: “Finally, told the for prosecutor statements, jail for the going he’s opening which he admitted to before Kimya, just I and Esme are gone. guess Casonya life now. He’s So rest of his freebies added.) not sustain the defense’s The trial court did (Emphasis him —” *10 Thereafter, stated, very and I’ll be clear about “Again, objection. prosecutor consider, okay. going He’s this, you even something should not be prison] [life his life.” two for the rest of jail on those other 84 Kirkland, if do not jury plain: you to the message According death, no for two punishment Kirkland will receive a recommendation
return improper. challenges these statements murders. that a sentence prosecutor argue for a improper agree. “[I]t We defendant accountable for and would hold the meaningless
less than death is State, v. a life sentence.” Hanson already serving death when he is a victim’s deliberations, jury capital-sentencing 2009 OK CR 206 P.3d But mitigating circumstances the offense. weigh aggravating must punishment killing receive no Esme and that Kirkland would suggesting murders, of death for their the state Casonya jury unless the returned a verdict assignment its and return recommendation jury proper asked the to set aside improper death based on considerations. prosecutor’s closing argument prejudicially find that We also rights.
affected Kirkland’s substantial
prejudicial,
to be
the remarks must
prosecutor’s closing argument
For
inflammatory
jury’s
product solely
passion
“so
as to render the
decision
be
(1986).
Williams,
16, 20,
State v.
23 Ohio St.3d
References
jury
It is error for a
to invite the
to consider what the victim
prosecutor
“
life,
moments of
it
‘invites
experienced
improperly
and felt
her last
because
”
Lynch,
facts not in evidence.’
speculate
State
¶ 122,
quoting
Wogenstahl,
75 Ohio
Combs,
278, 283,
(1996);
What was like for * * * her is him. What was it like for her then? only person escorting *11 * * * he confronts Esme on that building, [AJfter the back of he talks about how she’s cringing calling and he’s her names. You’re but a nothing bitch, lying girl, little 4-foot-ll. What did that in evoke her? And petrified. she’s
* * * What’s this girl going little naked in through the woods for her except * * * shoes and this little top? We know at point actually some she’s vomiting on herself she’s so * * * terrified.
* * * saw all the scrapes [Y]ou and cuts and raw skin on her back and on her behind. She probably never even felt that because of the horrible pain between her at legs point. that
Facts outside the record
A closing argument that goes beyond the record in
order to arouse an
emotional
response
Loza,
the jury may
prejudicial.
be
61, 78-79,
concluded saying, not fighting anymore. “[S]he’s not struggling. She’s She just pounds her little hands on the ground digs into the dirt. At point she’s no longer begging that man to let her live. She’s begging that man to let added.) her die.” (Emphasis Nothing the record supports the claim that begged Esme Kirkland to let her die. generate To jury sympathy Casonya, said, the prosecutor talk “[Y]ou tough
about
childhoods. How about her? Her dad is in prison when she’s born.
hardly
She
ever sees him. Her mom chose drugs over her little girl, and as a
result she’s brought up with some other brothers and sister and
cousins
grandma.” None of this information is in the
Casonya’s
record.
grandmother,
C.,
Patricia
testified that she had custody
and two of her brothers
“because the mother ran into problems and the children
placed
were
with me.”
Patricia did not identify the nature of
problems,
much less testify Casonya’s mother chose drugs
daughter.
over her
Nor
any
is there
testimony
about the father
being
jail or Casonya living with sisters or cousins.
circumstances
aggravating
murder as
The “nature and circumstances” of
may
of a
trial
refer
penalty phase
capital
in the
prosecutor
While
offense, that prosecutor
and circumstances of the
to the nature
closing argument
“
nature and circumstances of
before a
may
any
‘make
comment
’ ”
Were,
circumstances.”
“aggravating
the offense are
quoting Wogenstahl,
890 N.E.2d
Hale, 119
see also State v.
syllabus;
two
paragraph
*12
¶
aggravating
calculation
prior
that the defendant acted with
prove
stances of the murder
Newton,
circumstance);
108 Ohio
statutory aggravating
which is a
design,
and
¶
(the
13,
aggravating explain aggravating N.E.2d 286 mitigation Sheppard, evidence. State v. 703 (1998). nature and may But the state not tell the decisionmaker that the itself are the circumstances. State v. aggravating
circumstances
the murder
Ketterer,
70,
specific against mitigation: details of the murder outweighs I’m what I you say, hey, psychopath, wants
[Kirkland] just opposite. did. It does girl the life out of that little thing choking
And the last he tells us as he’s says he she’s not squeezing body, and the last breaths out of her little hands anymore. just pounds not She her little fighting struggling. She’s point longer and into dirt. At that she’s no ground digs that man to let her live. that man to let her die. begging begging She’s thankfully And ended her. weigh
You’llnever see a case with circumstances that more aggravating or mitigation weighs any less.
* * *
* * * rag pocket. up He takes a out of the back of his He twists it slowly methodically strangles Esme to death. She never [K.] fought. dug fingers slowly She into the dirt as she vomited and died.
Now, let’s that he is a weigh against mitigation psychopath and four, monster. self-proclaimed Again, gentlemen, ladies strike even a close call. *13 added.) remarks,
(Emphasis these jurors With the state led the to believe that they had to weigh against mitigation. circumstances of the murder itself sum, In closing we find the state’s remarks in the penalty phase
{¶ 96} improper were and substantially prejudicial. Accordingly, we conclude that Kirkland’s third of law proposition is well taken. Nevertheless, we decline to remand the case for a new sentencing
{¶ 97}
2929.05(A),
hearing. Pursuant to R.C.
this court must conduct
own indepen-
its
sentence,
dent
capital
evaluation of the
and that evaluation can cure
errors
See,
Hale,
penalty-phase
proceedings.
e.g.,
119 Ohio St.3d
(improper questions
penalty-phase
131-132
of a
witness were
review);
Sanders,
by
cured
the independent sentence
State v.
92 Ohio St.3d
(2001) (the
267,
{¶ 98} sentence, not cured this court’s review of the which will consider state’s improper arguments. IV) jurors of Law (Proposition death”
4. “Automatic law, of claims ineffective assistance In of proposition his fourth jurors out those who alleged counsel’s failure to weed on his trial counsel based Kirk- mitigating factors. automatically regard vote for death without would felony-jury only “garden variety” performed asserts that his counsel land selection, and focused voir dire. specialized, specific, rather than a satisfy prong not either of the Strickland of law does proposition This attorneys that his should have asked identify question Kirkland does not test. have, not, specific or a they did ask but should question but did Therefore, which to we have no basis on objection they failed to raise. was deficient. performance that his counsel’s conclude Likewise, no on which to conclude that the manner we have basis fact, prejudice. voir dire resulted in defense which defense counsel conducted panel “automatic death” member of the identify counsel did at least one had that removed for cause. successfully person fourth of law. proposition We overrule Kirkland’s V) weight mitigation evidence Law (Proposition
5. The
law,
sentence of
proposition
challenges
In his fifth
death,
This
an issue best
given
alleged weight
mitigation.
presents
evaluation,
concurrently
independent
with the court’s
sentence
and we
addressed
Jones,
6. Constitutional
(some
law
of nine
proposition
subparts
Kirkland’s sixth
consists
constitutionality
penalty.
of Ohio’s death
multiple subheadings) challenging the
*14
court has
most of these issues in
cases.
previous
addressed
Subpart
penalty
arbitrary
unequal punishment”
1. “The death
is
and
1 at least once:
rejected
argument presented
Subpart
We have
each
(cid:127)
Jenkins,
(1984),
164, 169,
citing
v.
15 Ohio St.3d
{¶ 107}
¶
Mink,
350,
89 ¶ (both racially in a applied is penalty the claim that Ohio’s death rejecting manner); discriminatory (cid:127) (1986) Buell, 136, 124, State 489 N.E.2d Ohio St.3d
{¶ 108}
disparity
on the
challenge
geographic
an
based
(rejecting
equal-protection
sentences);
death
¶
(cid:127)
103; Jenkins,
Mink
{¶ 109}
neither
the claim that the death
is unconstitutional because
(rejecting
penalty
deterrent).
the least restrictive
nor an effective
punishment
Subpart
sentencing procedures”
2. Ohio uses “unreliable
Glenn,
Subpart
impartial
to counsel and an
rights
defendant’s
Mapes,
State v.
rejected
argument
This court
this
19 Ohio St.3d
(1985).
116-117,
Subpart
death-penalty
Ohio’s
statutes
fail
because
provide
sentencing
they require proof
individualized
aggravating
during
guilt phase
circumstances
Ferguson,
in State v.
rejected
This court
this
argument
844 N.E.2d
3(C).
risk
death on
Subpart
imposes
impermissible
capital
Ohio
right
judge,
who choose their
to trial because
trial
defendants
the interest
dismiss the
justice, may
death-penalty specification
Hook,
State v. Van
rejected
argument
This court
this
256, 264,
Subpart
unconstitutionally
R.C.
mitigation
aggravating
to convert
evidence into an
factor
Scott,
rejected
argument
This court
90 2929.04(A)(7) because, setting by is unconstitutional Subpart R.C. 4. forth distinguish specifications felony-murder the same aggravating factors 2929.04(A)(7) murder, nothing does to narrow R.C. murder aggravated penalty the death eligible persons the class of Henderson, v. State 39 Ohio St.3d rejected argument this This court (1988). 28-29, 24, N.E.2d 1237 528 2929.08(D)(1) unconstitutionally vague are 5. R.C.
Subpart
2929.04
2929.03(D)(1) in
State
challenge
to R.C.
rejected
vagueness
This court
(1998).
McNeill,
438, 453,
596
R.C.
v.
upheld
700 N.E.2d
We
83 Ohio St.3d
(1999).
Chinn,
567-568,
548,
v.
Subpart
injection
punishment
7. Lethal
injection
Eighth
violates the
Amendment
argues
that lethal
However,
Supreme
the United States
Court has
the United States Constitution.
Baze v.
injection
constitutionality
affirmed the
of lethal
as method of execution.
(2008).
Rees,
35, 128
1520,
court has reached
553
S.Ct.
constitutionality of Ohio’s death
Because this claim is
penalty.
wholly conclusory,
Carter,
summarily reject
argument.
we
734 N.E.2d
345; Jenkins,
entirety. jury VII) 7. Ohio’s instructions (Proposition of Law 2901.05(E), Consistent with the definition set forth R.C. the trial court jury instructed the
[rjeasonable jurors, doubt is present they carefully when the after have evidence, compared considered and all the cannot are say they firmly truth convinced of the of the It is a doubt on reason and charge. based common sense. is not possible Reasonable doubt mere doubt because everything to human or relating depending affairs on moral evidence is open to some or possible imaginary doubt. beyond
Proof proof reasonable doubt is of such character that an ordinary person rely would be act it in willing upon the most important his or her own affairs.
Kirkland contends his seventh proposition phrases “willing to act” and “firmly jury convinced” allowed the to convict on a lower of proof, based standard namely evidence, clear and convincing violation of due And he process. alleges phrase the use of the “moral to convict evidence” allowed the based on decisions, subjective moral than demanding proof beyond rather a reasonable doubt.
92
reasonable-
repeatedly upheld
constitutionality
We have
Ohio’s
Frazier,
139,
doubt instruction.
St.3d
¶ 242;
819
Gapen,
convey
act”
phrases “willing
“firmly
adequately
145. The
convinced”
doubt,
lower,
they
difficult
of reasonable
do not establish a
clear-and-
concept
195, 201-203,
54
convincing
Nabozny,
standard. State
States,
121, 139-140,
citing
Holland
United
U.S.
S.Ct.
L.Ed.
specifically
constitutionality
This court has not
discussed the
*17
Frazier,
v.
phrase
Compare
Cuyahoga
“moral evidence.”
State
8th Dist.
No.
(Feb.
62557,
17, 1994),
Frazier,
323,
50703
with
v.
WL
State
73 Ohio St.3d
(1995).
330,
However,
Supreme
{¶ 126}
VIII)
Imposition
indigent
8.
of costs on
defendants (Proposition of Law
White,
580,
{¶ 128} reason, but no provides compelling intervening such as an in United change Supreme precedent, States Court to do so. Alternatively, Kirkland suggests stay the court should the collec-
{¶ 129} tion of costs. But the logic suggests why White no reason felons should be exempt payment of costs they while remain incarcerated. Accordingly, reject we Kirkland’s eighth proposition of law. attempted rape aggravated robbery
9. Insufficient evidence (Prop- and/or IX) osition of Law Kirkland asserts that the state presented insufficient evidence to him attempted rape robbery
convict or with connection the murder of evidence, At Casonya C. the close of the the defense moved for on acquittal these trial court all charges. The denied motion and allowed charges to the proceed jury. reviewing When sufficiency, any record for we must consider whether
rational trier of fact could
have found the essential elements
the crime proven
Leonard,
beyond
54,
Aggravated Four of charged Count the indictment Kirkland with aggravated murder and an aggravated-robbery specification. included “Aggravated robbery” means a theft in which offense the offender inflicts or attempts inflict serious 2911.01(A)(3). harm on physical another. R.C. provided The state sufficient evidence to support charge based
the fact that Casonya’s backpack phone and cell H. were never located. Tania that Casonya always testified carried her book Patricia bag her. C. testified that the book bag missing. And Kirkland and Ra’Shaud B. agreed *18 Casonya on was her cell at the talking phone time she encountered Kirkland. These facts are sufficient a evidence to sustain conviction for aggravated robbery. Davis, 107, 115-116, (1996).2
See State v. 76 Ohio St.3d
Attempted rape
rape
relevant definition of
in sexual
“engaging]
conduct
with
another when the offender purposely compels the
to
person
other
submit by force
2907.02(A)(2).
or threat of force.” R.C.
A
attempt
criminal
occurs
a
when
person, “purposely
knowingly,
or
and when purpose
knowledge
or
is sufficient
* * *
offense,
culpability
that,
for the commission of an
if
engage[s]
conduct
successful,
2923.02(A).
would constitute or result in the offense.” R.C.
haveWe
likened Ohio’s definition of
to that in
“attempt”
Code,
Penal
Model
which
requires that
not only
the offender
to commit
completed offense,
intended
but
also
engaged
conduct
substantial
constituting a
toward
step
completing
Woods,
offense.
State v.
advances —that him. The to give had refused her what she forcibly compel being, found Casonya’s body was purpose. corroborated evidence physical sock, transported that Kirkland indicating than one woods, nothing more Scudder, 71 Ohio her. See State forcibly undressed area and to a secluded (1994) victim’s location of the (finding 274-275, St.3d the conclusion midthigh supported underwear her ankles and around pants Biros, undressed); forcibly that she was (the sweater, undergarments (1997) pants, fact that the victim’s N.E.2d 891 “concealment or destruction” revealed the defendant’s never found were attempted rape). proving guilt” purposes and “consciousness evidence “pelvic that her body severely so Casonya’s entire Moreover, Kirkland burned fire,” that of 13- similarly to charred and so completely had almost been area previously court has raping. This K., he did confess Esme whom year-old a “reasonable can create organs a victim’s sexual found that the “evisceration” Id. rape.” or rape attempted to conceal evidence “attempt[ inference” of an ] body, Casonya’s fire originated where the testimony was no about While there in her area. body originated pubic burning of Esme’s there was evidence of guilt. the consciousness revealed burning inferences, in favor of evidence, all including permissible Viewing the *19 Kirkland fact conclude that trier of could state, any find that rational we in a of conduct— course Casonya engaged and forcibly rape a purpose formed area, undressing and her— to a secluded i.e., her choking, transporting grabbing, of that crime. completion toward the step a substantial qualifying as of law. ninth proposition overrule Kirkland’s Accordingly, we X) of Law error (Proposition 10. Cumulative that the court should law, argues proposition In his tenth error. Under of cumulative on the doctrine conviction based
reverse his doctrine, this will court reverse a conviction when the cumulative effect of errors a fair deprives though defendant of trial each of instances of even trial-court error individually Powell, does not cause for constitute reversal. State v. 223; DeMarco, Ohio St.3d 971 N.E.2d State v. 191, 196-197, Cumulative error does not apply in as any cases such this one where error in trial court is curable Brown, through independent the court’s review. 2003- Ohio-5059,
Independent Sentence Evaluation law, Having propositions considered Kirkland’s this court must now independently First, review Kirkland’s death sentence. the court must review and all independently weigh record, facts and other evidence disclosed “and consider the offense and the offender determine whether aggravating circumstances the offender guilty was found of committing outweigh the mitigat- case, ing factors in whether the sentence of death is appropriate.” R.C. 2929.05(A).
Aggravating circumstances The evidence at trial beyond established {¶ reasonable doubt 142} K., Esme murdered with the aggravating circumstance of murdering her while committing rape or or attempting aggravated robbery. The evidence beyond also established doubt reasonable that he murdered C. with the aggravating murdering circumstance of committing while or attempting aggravated robbery or rape. also found an additional aggravating circumstance connec- murder,
tion with each namely that the murders part were of course of conduct.
Mitigating evidence Against circumstances, these aggravating this court must weigh evidence in mitigation Kirkland. submitted Kirkland called a single witness to testify mitigation. Dr. Scott
Bresler performed testified that he had Anthony evaluation of Kirkland. He diagnosed having adjustment Kirkland as “an disorder with mixed emotional issues as well conduct” as an antisocial personality disorder. condition causes him to thinking have trouble difficulty emotions, well as interpersonal functioning, terms, control. impulse lay he is a psychopath. Dr. Bresler testified that the condition behaviors, manifests unlawful deceitfulness, a pattern impulsivity, irritability, aggressiveness, extreme reck- less disregard safety others, for the of himself and “a consistent kind of *20 manifests at force,” problem and lack over of remorse. a life irresponsibility genetically predisposed. to be Individuals early age. appear his a role. time, upbringing played circumstances of At the same 147} {¶ toward and violent alcohol-dependent extremely was biological Kirkland’s father (when nine or father Kirkland was about his his left Kirkland and mother. Until his father, watched father beat by was his often his ten), Kirkland often beaten mother. mother, his father his rape and was forced to watch teens, abuse. engaged Kirkland had extensive substance By early his 148} {¶ he did depression, with He for which fought often other kids. suffered He years. treatment until his adult not seek and some of Meanwhile, got help and herself his mother remarried result, children, Kirkland, was As a his attachment but not who the oldest. person allows a to the adapt which the testified family, psychiatrist
his forensic adulthood, he Throughout live his damaged. and to responsibly, world income, took steady no drank and relationships, formed no stable maintained Dr. and, homeless. prison, According after his release from became drugs, Bresler, ever.” responsibly society Kirkland “cannot live crimes, to justify Dr. Bresler also testified Kirkland was able K., “so exception: killing one he cannot rationalize his Esme he her he’ll cry.” oftentimes when talks about Kirkland would time Finally, Dr. Bresler stated that have a difficult him, prison, to life in can as shown the fact that he
adjusting prison by but handle already spent years prison. had This from Dr. was the first time the learned statement Bresler spent period jail. prison Kirkland of time in went to an extended Douglas after her on fire. while he was murdering setting Leola And
incarcerated, prison he various and staff. threatened officials Finally, Dr. Bresler testified on cross-examination that father, sexually by their and also himself when sisters were abused he was 13. to the jury. accepted Kirkland made a brief unsworn statement He “get[s] angry for the of the four He said he so
responsibility deaths women. [himjself,” though acknowledged cannot was no excuse. He ex- stop “I cannot believe horrible I am. pressed away desire be locked forever. how I will never or rest or nor should I.” He said he forgive forget peace, be — conclusion, And he told police stop. confessed to because he wanted it to live, kill you please “I do not if I don’t deserve but jury: you blame me. life.” spare my
Sentence evaluation 2929.04(B)(7) provides may R.C. that the court consider as mitigation, {¶ 155} statute, in “any addition to other factors listed factors that other are relevant to the issue of should to whether offender be sentenced death.” pointed may to facts that have mitigating weight has several under (B)(7): division (cid:127) His personality traditionally disorder: This court has accorded
{¶ 156}
some,
little,
v.
personality
weight.
Cunningham,
disorders
but
State
105 Ohio
¶
197,
138;
weight
Powell,
evidence
the defendant suffered an abusive childhood.
132
233,
abuse
weight mitigation.
Ohio St.3d
854 N.E.2d
191.
mitigation
The
value of
Kirkland’s confessions would usually
weight,
receive little
given
he initially
lied to police and tried to blame Esme K.’s murder on the fictitious Pedro. State
Perez,
¶
v.
122,
statement
given
mitigating
Trimble,
are
some
weight.
v.
State
297,
testified that Kirkland
during
cried
their sessions when he talked about killing
Hilbert,
Esme K.
hand,
Detective
other
had the impression that when
during
interviews,
Kirkland cried
his police
more out
self-regard
than
concern for the victims. Kirkland’s allocution consisted
simple
of six
words:
“Offer an
apology
family.”
is revealing:
apologized
statement
he
singular,
the family,
probably
family
K.
Esme Whatever credit he is due
for
his
lack of remorse
apparent
is offset
killing
remorse over
Esme
for his
expres-
their families. His
his other victims and
suffering
caused
pain and
too self-
ultimately
infrequent,
ambiguous,
too
remorse are too
sions of
weight.
justify according
significant
them
serving
(cid:127)
mitigating value to
gave
court
some
Mercy: The trial
mercy
mitigating
not a
But
mercy in
unsworn statement.
request
N.E.2d 73
O’Neal,
factor. State
Tenace,
grounds
aggravating
that the
97-106,
court vacated a death sentence on
The court
mitigating
factors.
outweigh
did
circumstances
offense
Both
of Tenace’s childhood.
weight
tragic
to the
circumstances
great
afforded
*22
abusers,
and
they
neglectful
and
and substance
were
were criminals
parents
his
¶
himself,
was
abused
sexually
Id. at
103. Tenace
children.
abusive
services, and
to watch the
sold
mother for sexual
forced
including being
by his
¶
by
exposed
his
at 102. He was
substance abuse
abuse of
sister.
Id.
sexual
him to
Id.
encouraged
who
commit crimes.
boyfriends,
mother and
his
death
contrast,
In
declined to vacate the
sentence based
we
164}
{¶
{¶ testimony physical and sexual abuse pervasive Tenace and Mundt. The time, At alleged by home Mundt. the same does anything Kirkland’s exceeds father, to the in Tenace. Kirkland was abused one his equate parent, facts Tenace, in his parent Palmore. Kirkland had one nonabusive George So unlike old, Moreover, years the home Kirkland was or ten his father left when nine life. when he any during years is no evidence that abuse continued teen and there psychopath dysfunc- his mother. The fact that Kirkland is lived with circum- tragic, outweigh aggravating home is not sufficient to tional but crimes, coupled the other factors mitigating of his even when stances identified above. and, so, Kirkland’s doing reject We therefore affirm sentence not outweigh mitigating that the circumstances did aggravating
contention evidence.
Proportionality review
part
The second
of the court’s
review
us to
independent
requires
decide
whether a sentence of death
requirement
proportionality.
satisfies
R.C.
2929.05(A)
requires this court
“consider whether the sentence is excessive or
disproportionate
imposed
in similar cases.”
penalty
Jones,
Ohio St.3d
984 N.E.2d
at
this court affirmed the defendant’s death
aggravated
sentence
murder
course of committing
rape.
The court
also
has
affirmed death sentences in
combining a course-of-conduct
with a
specification
robbery-murder specifi
cases
Perez,
cation.
Judgment affirmed. C.J., JJ., O’Connor, Kennedy, and O’Donnell and concur. JJ., concur in part and dissent in part. Lanzinger,
Pfeifer O’Neill, J., dissents.
Pfeifer, J., concurring part dissenting part. employ Ohio continues to penalty the death of our part criminal- justice scheme, punishment Anthony brutal, predatory, and hei- *23 nous clearly crimes him for qualify that ultimate penalty. The state had a seemingly airtight Kirkland, case against but overzealousness in both the guilt punishment phases efforts; has tainted its this court will taint the law if we bless the state’s actions. In regard to penalty phase, the I concur in Justice Lanzinger’s opinion that Kirkland should be resentenced prejudicial due to the effects of prosecutorial misconduct. to regard guilt phase, the I write separately to dissent from majority’s holding sustaining Kirkland’s conviction on the rape of attempted Casonya C.
I I dissent from majority’s holding regarding the “other acts” evidence through introduced at trial testimony Kylah Kylah W. testified that old, when years she was 13 Kirkland had her exposed himself to and solicited 404(B) sex from In my judgment, her. Evid.R. should precluded have also, admission of that testimony; its unfairly admission was prejudicial pursuant to Evid.R. 403. pay 2007 offer to theory September is that Kirkland’s The state’s prove to that a is that is admissible for sex act evidence
Kylah earlier, in is no doubt May over There year to attempted rape to Kylah offering himself to exposing testimony regarding that the an evil who person acts him to be revelatory. for a sex are show her act pay is, That the evidence willing pay and is for sex. girls underage sexualizes in its closing argument admitted as much character. The state demonstrates his child for pay girlfriend’s a man who would it told the that kind of when Casonya: rape man who acts is kind of would sex when he count, charge attempted rape; is a again, First bridge, when he walked with her approached Casonya [C.] on act, attempt it an to have sexual when he her it was was money, offered contact with her. * * *
And, acts comes This testimony this is the other in. again, where actually daughter of one of his [Kylah young girl W.] women, object. sees girlfriends, he sees her as he all a sex but do, little mother 13-year-old girl, And what does he offers this whose time, him live there time to five dollars actually enough is nice let for, words, his eat her out. to be first to
* * * But he that when a 14- you stranger, wants believe confronted year-old walking bridge, got he offered her 20 dollars and girl across up to 60 to talk. dollars
Well, talk, just if this girl I’m sure little was offered 60 dollars she it, but he made take that something would have taken said or did knee she do money, predator’s throw it back face and him. Did talk, say to have you— that because he said let’s or did I want sex with ^ Hi Hi
You at his You look at he does he sees a pattern. look what when eyes. get woman. what’s in He sex. And going You see sees he’s it, it, it. gonna get it. He’ll he’ll for but he’s pay barter if he or He raping Casonya We don’t know was successful not [in C.]. *24 job did a it. pretty good destroying closing argument, Kylah’s the state’s
As demonstrated
use
evidence
to
fact.
Its
testimony
prove any consequential
only probative
was not relevant
very
person
value was to show that Kirkland is a
bad
who would
for sex with
pay
underage girl,
raped Casonya.
and therefore he must have
that an
Evidence
accused committed
crime
than
for
other
the one
which he is on trial is not admissible when its sole
is
purpose
to show
crime,
is,
accused’s
or inclination to
propensity
commit
to show that he acted
in conformity
66, 68,
with his bad character.
Curry,
State v.
(1975).
404(B)
N.E.2d 720
Evid.R.
codifies
common law with
to
respect
evidence of
wrongdoing
other acts of
against admissibility.
is construed
Lowe,
Ohio
St.3d
Evidence of wrongs, other or acts is not prove admissible to of a person character in conformity order show action It therewith. however, may, motive, be admissible for purposes proof other such as of intent, opportunity, preparation, knowledge, or identity, absence of mis- take or accident. 404(B)
The majority Kylah’s rules that testimony is admissible under Evid.R. because soliciting Kylah Kirkland’s that “he had sexual act— —demonstrated intent and for offering Casonya, motive” money. Majority opinion at 69. But Kirkland faces the death for the penalty Casonya death of not because he offered money her sexa act but he allegedly attempted because to rape her before killing her. Intent solicit sex is not thing the same as intent to compel sex. And murder committed because a anger sexual advance been has refused is not the same crime as rape. show, murder the course of The state needed to 404(B), pursuant Evid.R. act of soliciting Kylah established a motive for the attempted rape or that act of Kylah soliciting established intent was to rape Casonya. the pivotal On question whether attempted rape Casonya, Kylah’s testimony no light. sheds When Kylah rejected Kirkland’s proposition, rape did her. He away. walked Thus, Kirkland’s bad act no issue, shows intent or motive regarding crime at 404(B). and the is not testimony under admissible Evid.R. Further, I Kylah’s testimony would find inadmissible under Evid.R.
403 because its probative substantially value outweighed by the danger unfair prejudice. Because of the complete lack corresponding operative facts between the behavior Kylah toward and the murder of Casonya, Kylah’s testimo- ny was of probative limited Kylah value. was the daughter friend Kirkland, and he would sometimes stay family. exposed bedroom, himself to Kylah while she but then left the room. He returned with a note offering pay her for sex act and then left the room *25 a five- put the room—while dressed —he entering again. Finally, again after violently react when Kirkland did not her left. on dresser then dollar bill his offer. Kylah refused Kirkland encounter between contrast, stranger. a The Casonya was no evidence and at There is randomly, night. in Casonya public, occurred to her. exposed himself Casonya or that solicited for sex
that Kirkland when with violence money Casonya, responded after Finally, offering was in case is whether there question at him. The money back she threw being activity Kylah is criminal but nonviolent a at all. Kirkland’s rape is, occurred rape That a situation where no occurred. rape to show that a offered of limited The evidence is thus as occurred. rape used evidence being probative value. undoubtedly prejudicial, even to defendant Kylah’s testimony was newspaper The mentions a
demonstrably majority as Kirkland. repugnant claims it is not the record. The defense quote that it because article dared trip the Internet: I save the reader prejudice. that it demonstrates will told County Enquirer Deters the Cincinnati Hamilton Prosecutor Joe conviction for the murder testimony pivotal capital Kirkland’s Kylah’s was Casonya: sentence if the have recommended the death jury
Deters wonders would testimony. girl’s case without the involving Casonya in the is no “I think have a coin Deters said. “There flip,” it would been Casonya’s case.” question she made difference fate, killer The testimony Anthony Deters: could seal Perry, Teen’s 2010). (March 31, was at- Enquirer Certainly, Prosecutor Deters Cincinnati girl courage may her have publicly recognize young tempting case, Kylah’s no but there can be doubt importance overstated was Kirkland. testimony highly prejudicial against grown sexually that a man solicited and Without evidence question, The prejudicial. old is years himself he knew to be
exposed girl admission, state, its own used because testimony unfairly prejudicial rape must tried to testimony that Kirkland have convince motion on its to Kirkland’s Civ.R. 29 opposition state rested entire Casonya. [C.], rape to the on testimony: regard attempted Kylah’s “Specifically plan.” or has there was a common scheme [Kylah] this last witness shown character, Because the testimony other-acts reflected Kirkland’s did requirements 404(B), not meet the of Evid.R. and was unfairly prejudicial under Evid.R. I would find that law proposition Kirkland’s first has merit.
II Kirkland asserts in his ninth proposition of law there {¶ was 179} insufficient evidence to him rape convict of in connection with attempted the Casonya evidence, murder of C. At the close of the the defense made Crim.R. 29 motion acquittal for on that charge. The trial court the motion denied charges allowed all to proceed to the I jury. would find that there is insufficient
evidence to convict Kirkland attempted rape. When a record reviewing sufficiency, for the must
{¶
court
consider
180}
whether, viewing the
light
evidence in the
prosecution,
most favorable to the
any
rational trier of fact could have found the essential elements of the crime proved
beyond a
Leonard,
reasonable
54,
doubt. State v.
104 Ohio
force.” R.C.
The
attempted
crime of
rape
complete
is
when an
offender purposely engages
that,
successful,
in conduct
if
would constitute or
2923.02(A).
result
of rape.
the offense
R.C.
We have
explained
“criminal
attempt” as an act
“constituting
step
substantial
conduct planned
course of
to
an
culminate” in
Woods,
offender’s commission of the crime. State v.
48 Ohio
St.2d
Casonya C. is indisputable. then, obvious and question, The what overt acts presented were as evidence to prove Kirkland attempted compel sexual conduct. The police physical collected no kit, evidence of from a rape rape because the damage Casonya’s area, fire body, specifically her pelvic prevented pathologist forensic taking any specimens. during police And interrogation, Kirkland repeatedly denied sex with having Casonya. talk” money Casonya “to that Kirkland’s offer majority The states no testimony, state had evidence Kylah’s But without offer sex. And was for sexual services. money the offer of
from which to conclude that sex, money Kirkland offered if evidence that even there were attempted to her before rape of whether he probative not be evidence would killed her. says that it is consistent evidence majority points physical single naked for a Casonya was found save the murder. purpose
a sexual
behind
alone,
fact,
to sustain the
is sufficient
argues
standing
that that
sock. The state
However,
majority,
the cases cited
conviction.
even
attempted-rape
evidence of sexual assault. See
was not
sole
body
naked condition
(1994);
Scudder,
263, 274-275,
insufficient jeans unzipped pulled down several partially was found with her dered victim shoes, jacket, missing, Id. and watch were hips. inches from her at 232. Her the body. no the There was also saliva stain on and there was underwear on that, tests, the jeans according laboratory was consistent with crotch of her evidence, attempted-rape this court vacated Heinish’s Despite defendant’s. conviction, body the the condition noted finding because of victim’s “[e]vidence beyond a reasonable doubt that not allow the fact-finder to conclude above does rape has occurred.” Id. at 239. attempted burning Casonya’s body, coupled The with other-acts evidence victim, K., presents a Kirkland’s sexual assault of another Esme concerning state, Casonya is rape call. Kirkland’s intent to evident According closer the the defen- raped the fact that he Esme: “The stark similarities between [K.], i.e., body, the beating, vaginal burning, on the the nude dant’s attack Esme are relevant.” particularly know body girl of Esme K.—a we he did Kirkland burned the When evidence, fire area. Based on that the state pubic started the in her
rape —he in or C. the fire was started argues rape for an inference because area, as an in the which the state characterizes obvious vaginal was concentrated destroy any attempt rape. evidence However, that the fire support the does not the state’s assertion record M.D., Casonya’s Ugwu, in or area. Obinna vaginal
was started concentrated no by county, offered pathologist employed coroner and forensic deputy only Casonya’s body. fire on The origin point opinion as to the testimony came from Ph.D., Elizabeth Murray, forensic anthropology consultant. Dr. Murray testified that looked “[i]t like center the fire was at the center of Dr. body.” Murray whether, not by asked to clarify “the center of the body,” she meant the area vaginal However, or somewhere on torso. is clear context that she meant latter: she testified that hands forearms were they most burned because likely body. were folded across the Also, burned, she the legs severely noted that were not as suggesting again she began fact, believed fire on the In higher body. Casonya’s legs were the only part of the not body substantially charred by the fire. Burning Casonya’s body may well have an attempt destroy
{¶ been 189} murder, evidence of her not to of an destroy attempted rape. evidence burned the of all victims, bodies four of just Casonya. not Esme and Ultimately, all the state was able to prove was that Kirkland destroyed the bodies victims, of his including the bodies of two victims who not raped. were fact that he burned Casonya’s body probative attempted evidence of whether he rape her first. In summary, the presented state insufficient evidence of attempted I rape, and would therefore reverse conviction on that charge.
Ill conclusion, I believe that the case should be remanded for resen- tencing without a consideration of attempted rape of Casonya as an Crawford aggravating circumstance. The protections afforded state law and our Consti- *28 tutions only are as meaningful as this court’s to willingness recognize them. J., part concurring in dissenting part. and in
Lanzinger, I in concur the judgment affirming Kirkland’s convictions. But I because believe that the prosecutorial misconduct in this case violated Kirk- land’s rights due I process, respectfully dissent from the majority’s decision to affirm his death sentence and would the remand case for a new sentencing hearing 2929.06(B). pursuant to R.C. Although agree I with the majority’s prosecutor’s conclusion that “the
closing argument prejudicially affected Kirkland’s substantial rights,” majority ¶ at I opinion disagree majority’s with the declining decision to remand the case for a new sentencing hearing. procedures sentencing capital Our charge independent cases two bodies evaluating whether the death penalty 106 at the this court trial level and panel the three-judge or a jury the proper:
is a sentence has this, jury a recommended like where In cases level. appellate if only proper sentence should occur of a death death, review independent our the recommenda- leading jury’s toup followed were sentencing-phase procedures tion. 2929.05(A) independent we must conduct provides R.C. While the this when sentence, conduct evaluation we should not death
evaluation
the
and
exposed to substantial
jury
a
that was
by
recommended
sentence
independent
our
typically used
have
prosecutorial misconduct. We
prejudicial
in its
by
trial court
errors of law the
to correct
of the death sentence
evaluation
prejudicial Williams, and solely passion prejudice.” by prosecu- remarks opinion repeated cites majority The case, closing that “the state’s and it concludes that meet this standard tor substantially prejudicial.” were penalty phase improper remarks by the record. This conclusion is borne out Majority opinion at 96. in this case rendered potentially misconduct prosecutorial Because solely preju- “a recommending product passion death jury’s decision of the sentence.
dice,” by independent this court’s review it cannot be cured occurring during penalty phase, own evaluation can cure errors While our a sentence caused the recommend may'have cannot cure an error that Mills, 62 Ohio majority cites State solely product prejudice. that is (1992). Mills, however, far 373-374, there were St.3d misconduct, object. failed to and the defendant prosecutorial fewer instances substantially not that the state’s actions were we did conclude significantly, Most case, hand, offhand is not a case which on the other prejudicial. Here, majority have had a effect. may negligible the prosecutor remarks I prejudicial. substantially misconduct was concluded that the prosecutorial has independent review of death sentence not can conduct an do believe we recommended, judgment I would reverse the and therefore properly that was hearing. proper sentencing remand for a *29 would not mean Reversing judgment sentencing death the be Because this case would he has death for actions. escaped penalty that trial, sentencing phase during an error that occurred remanded due to 2929.06(B). R.C. pursuant eligible penalty still be for the death Kirkland would Although horrific, the crimes alleged Kirkland is to have committed are due process requires that be free from jury before prejudice recommending the death penalty. view, Due in process, my demands reversal and remand for resentencing.
O’Neill, J., dissenting.
justice
citizen,
As a
and as a
it is
in
truly difficult
separate
ease to
personal
outrage
clinical
latter, however,
constitutional analysis. The
required by my oath of office. Anthony Kirkland’s actions were monstrous —he
must be punished and society must be vigilantly protected from him. He
deserves nothing less than life in prison
possibility
release,
without
and the
horror of his crimes certainly
easy
makes it
suggest
only
death is the
fit
punishment for him. But because the
penalty
death
“is inherently both cruel and
unusual,” State v. Wogenstahl,
1437,
penalty
“were improper and substantially prejudicial.” Majority opinion at
¶
Carter,
96. Compare
Harmless
Error
the Penalty
Capital
Phase
Case:
A Doctrine
125,
Misunderstood and Misapplied,
(1993)
131,
Ga.L.Rev.
harmless,
(discussing
error).
as opposed
prejudicial,
But
instead
reversing
the sentence and
remanding
a new sentencing
hearing,
majority holds
that our independent evaluation and approval of the capital sentence cured the
errors
the penalty-phase
I
proceedings.
disagree. This court
upon
has relied
independent
its
review to “cure” trial-court penalty-phase
deficiencies
prepar
ing a written sentencing
Gumm,
opinion, State v.
73 Ohio St.3d
N.E.2d 253
allowing improper testimony from a
witness,
state expert
Hale,
State v.
118,
which by jury. must found a be sentence 738, 745, 108 110 S.Ct. 494 Mississippi v. U.S. In Clemons permissi- it was Court held that (1990), Supreme the United States 725
L.Ed.2d
its
a
of death based
to
sentence
impose
Court
Mississippi Supreme
for the
ble
the
after
circumstances
aggravating
mitigating
and
reweighing of
independent
found
factors
aggravating
one
struck down as unconstitutional
state court
imposing
for
system
that Ohio’s
recognized
has
This court
jury.
the
by
system approved
analogous
Mississippi
to the
sentences is
death
reviewing
107, 124,
the
by
case
death-penalty
of a
penalty phase
errors
the
prejudicial
“curing”
simply
accept
But I
cannot
the death sentence.
reviewing
independently
Sixth
comports
somehow
that our
review
independent
proposition
circumstances.
jury weigh mitigating
aggravating
have a
right
Amendment
Supreme
Court’s
inconsistent with
United States
my
In
Clemons is
opinion,
Amend-
on a
Sixth
premise
rests
Ring, because Clemons
pronouncement
—“the
permit
that
aggravating factors
require
jury specify
that a
ment does not
where
sentencing, even
require jury
nor does it
capital punishment,
imposition
faulty.
has
be
shown to
findings
Ring
of fact”—that
specific
the sentence turns on
omitted.)
demonstrates,
Sixth Amend-
(Citation
As
Ring
at 746.
Clemons
factors operate
“enumerated
things:
aggravating
those
requires precisely
ment
offense,’
greater
[and therefore]
of a
equivalent
‘the functional
an element
jury.” Ring
they
be found
requires
Amendment
the Sixth
466, 494,
2348, 147 L.E.2d
120 S.Ct.
Jersey,
New
530 U.S.
Apprendi v.
quoting
—
States,
-,
(2000),
Moreover,
U.S.
Alleyne
v. United
fn.
fact that
any
court concluded
right to have a all jury find him facts that make eligible penalty, the death right must also have a jury have make the final determination that he actually be will sentenced to death.” Baston Bagley, F.3d fn. 1 (6th Cir.2005) (Merritt, J., dissenting) *31 (arguing “Ring has overruled Clem ”). light ons of Apprendi, Ring, it Alleyne, seems obvious that Clemons is bad law that will someday be explicitly overruled. given And that this court has already concluded that the defendant’s penalty-phase hearing unfair, compounds that unfairness for this court simply reimpose penalty the death instead of remanding sentencing case for jury to make that determination. I have my stated belief that capital punishment itself is unconstitution- al; today’s decision, the court plainly system demonstrates Ohio’s imposing reviewing death sentences is unconstitutional as well. Accordingly, I dissent.
Joseph Deters, T. Hamilton County Prosecuting Attorney, and William E. Breyer, Chief Prosecuting Assistant Attorney, appellee.
Herbert E. Hust, Freeman and K. Bruce for appellant.
Disciplinary
v. Turner.
Counsel
Disciplinary
Counsel
Turner,
[Cite as