STATE OF OHIO, Plаintiff-Appellee, - vs - JOSEPH L. THOMAS, Defendant-Appellant.
CASE NO. 2019-L-085
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO
August 31, 2020
[Cite as State v. Thomas, 2020-Ohio-4635.]
CYNTHIA WESTCOTT RICE, J.
Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2011 CR 000321. Judgment: Affirmed.
Timothy Young, Ohio Public Defender, and Victoria Bader and Addison M. Spriggs, Assistant State Public Defenders, 250 East Broad Street, Suite 1400, Columbus, OH 43215 (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Joseph L. Thomas, appeals from several judgments of the Lake County Court of Common Pleas, culminating in the judgment convicting him, after trial by jury, of, inter alia, the aggravated murder of Annie McSween. For the reasons discussed in this opinion, we affirm the judgments of the trial court.
{¶3} [T]he trial court committed prejudicial error by admitting evidence of five knives that the state knew were not used in connection with McSween‘s murder and that the prosecutor relied on to describe Thomas as an owner of “full Rambo combat knives” with the intent to have the jury infer that Thomas is a dangerous person of violent character. Id. at ¶45.
{¶4} In light of the foregoing, and because the circumstantial case against appellant was not overwhelming, the Court concluded appellant‘s conviction must be reversed and remanded for a new trial. The case proceeded to a second jury trial where the following facts were adduced:
{¶5} Late night of November 25 and early hours of November 26, 2010
{¶6} Mario‘s Lakeway Lounge is a bar located in Mentor-on-the-Lake, Lake County, Ohio. It is situated on Andrews Road, next to Yager‘s Marine, a boat repair and storage facility. Behind the bar, on Park Street, is a residence owned by Mario Cacic,
{¶7} Other patrons that evening noticed what they described as a white male, who they did not recognize, with a gap in his teeth. The unknown male played games of pool and shared his agitation regarding his girlfriend with those who would listen. He awkwardly danced and expressed interest in some women. Around 1:45 or 2:00 a.m., Mr. Williams was near the male when Ms. Huelsman invited him to her Park Street residence to watch a movie. He accepted the invitation and explained to the unknown male he was leaving with Ms. Huelsman. The male commented that he wished he had a woman to join as well.
{¶8} At approximately 2:30 a.m., the only remaining patron in the bar was the unknown white male. The bar owner, Mr. Cacic, and the bartender, Ms. McSween, were the only others in the establishment. Mr. Cacic observed the man drinking a beer
{¶9} Meanwhile, Ms. Huelsman and Mr. Williams had fallen asleep on a couch while watching a movie. Around 4:15 a.m., Mr. Williams awoke to use the restroom. He returned to the sofa and was watching television when he heard a sudden pounding noise on the house, like a shovel slamming on the side of the residence. As Ms. Huelsman awakened, the pounding moved along the side of the house and then stopped. Mr. Williams heard what he thought was the murmuring of a male voice. They then heard the screen door handle jiggle. The main door was slightly open and Ms. Huelsman, concerned an intruder was attempting to enter, quickly slammed it closed and locked it. Mr. Williams observed a silhouette of a person with shoulder length hair through the front-door window and after several minutes passed, Mr. Williams went outside to surveille the house. The night was cold and raining. Several cars remained in the bar‘s parking lot, some belonging to Mr. Cacic, one to Ms. McSween, and others to residents of the house behind the bar. Mr. Williams neither saw any potential intruders nor any obvious signs of a disturbance.
{¶10} The Next Morning
{¶12} At approximately the same time, James Yager, of Yager‘s Marine, the boat repair and storage facility next to Mario‘s Lakeway Lounge, was arriving at his place of business and noticed that two boats that had been shrink-wrapped for the season had been cut open with a knife. While inspecting the boats for additional possible damage, Mr. Yager noticed a woman‘s shoe and underwear in the bar‘s parking lot. Mr. Yager saw Mr. Cacic and greeted him. Mr. Cacic advised Mr. Yager that several vehicles had their tires slashed and, at that point, Mr. Yager noticed gravel next to one of the vehicles was disturbed and observed jewelry on the ground; it appeared, from the disturbance, that a struggle took place. He then noticed a woman‘s shoe in the wheel well of one of the cars. Mr. Yager then proceeded to the edge of a wooded area near the bar and observed the nude, lifeless body of Ms. McSween approximately 30 feet into the woods.
{¶13} Coroner‘s Findings
{¶14} Dr. Dan Galita, forensic pathologist and medical examiner at the Cuyahoga County Medical Examiner‘s Office, performed the autopsy. Ms. McSween‘s cause of death was sharp force trauma with a knife to the neck and back and blunt force trauma to the head. The preliminary examination revealed a large number of exterior
{¶15} Dr. Galita further opined Ms. McSween was most likely dragged naked from the parking lot into the wooded area; her body showed linear abrasions on the hip, upper extremities, including her arms, lоwer chest, and hands. Further, Ms. McSween‘s vagina and anus were both distended and lacerated; the abrasions and lacerations to these areas were consistent with the forced introduction of a blunt, cylindrical object. Finally, after her death, Dr. Galita concluded Ms. McSween was stabbed five times in the back; the stab wounds were delivered with such force to perforate the chest wall and certain internal organs.
{¶16} Investigation
{¶17} Members of the Mentor-on-the-Lake Police Department arrived and secured the crime scene. As the investigation commenced, other police departments assisted. The Lake County Crime Laboratory (“LCCL“) processed evidence at the
{¶18} While processing the crime scene, Ms. McSween‘s shoes, underwear, and eyeglasses were recovered. David Green from LCCL observed a potential shoe imprint near Ms. McSween‘s vehicle and made a plaster imprint. Ms. McSween‘s cell phone was recovered in a driveway within throwing distance of the bar. Ms. McSween‘s vehicle was swabbed for blood and DNA. The Park Street residence was photographed and searched. The blood on the house and front step, as well as bloody handprints on the side of the house and front door were photographed; a bloody trail was also observed in the woods where the body was discovered. Conspicuously, Ms. McSween‘s remaining clothing was missing from the scene.
{¶19} DNA samples were collected from Ms. McSween‘s body to test against suspects as they developed. Although police were having difficulty finding the last patron at the bar, another patron, Matt Miller, one of the individuals who played pool with the man, assisted authorities in sketching a composite. A press release was subsequently рrepared by the Mentor-on-the-Lake Police Department requesting the public‘s help in identifying the individual.
{¶20} Meanwhile, appellant was living at the residence of Susan Gorsha on Marine Parkway, approximately a 15-minute walk from Mario‘s Lakeway Lounge. Also living in the home was Ms. Gorsha‘s daughter, Jackie Miller; her husband; and two
{¶21} During the winter months, police continued to investigate the homicide, but with little progress. Eventually, Mentor-on-the-Lake Police Chief John Gielink received information that one Robert Jenkins, next-door neighbor of Susan Gorsha, observed something of interest during the early-morning hours of Friday, November 26, 2010. Mr. Jenkins was awakened that morning around 5:00 or 5:30 a.m. by flickering lights casting through his second-floor bedroom window. The bedroom overlooks Ms. Gorsha‘s fenced-in yard. He arose and observed what appeared to be the back of a man standing near Ms. Gorsha‘s burning barrel, which was lit with a fire. Mr. Jenkins thought this was odd, given the time of morning and the cold and wet weather; he did not connect this event with the murder investigation, however, because the residents of Ms. Gorsha‘s home were, in his estimation, generally odd and quirky.
{¶22} With this new information, in April 2011, Detective David Strauss subsequently visited the Gorsha residence, observed the barrel, and seized it. He and members of BCI and FBI emptied the barrel‘s contents, identified various pieces of clothing and other random items. Among the items were Ms. McSween‘s sweater and
{¶23} Appellant had since vacated the Gorsha residеnce and was living with his girlfriend, Linda Roncalli. A search warrant was executed on Ms. Roncalli‘s home in Madison, Ohio. Police seized appellant‘s computers, cell phone, and other personal property. Ms. Roncalli confirmed she had canceled plans to be with appellant on Thanksgiving and suggested they should not see each other anymore. She additionally confirmed appellant responded angrily. The morning after the murder, appellant contacted Ms. Roncalli and asked if she was watching the news, explaining a bartender was murdered at Mario‘s Lakeway Lounge. This time, appellant denied being there.
{¶24} Forensics
{¶25} The shoe-print impression taken at the crime scene was compared against appellant‘s boots. David Green, Trace Evidence Examiner Supervisor from LCCL, concluded the boot heel could not be eliminated as causing the impression. Also, in addition to the swabs taken from Ms. McSween‘s body, several swabs were collected from outside of her vehicle. Prior to the second trial, many of the samples were retested using updated Y-STR DNA testing, which ignores the X, female chromosomes and thus isolates the Y, male chromosome from DNA mixtures which include a female and male; this testing is particularly informative where the DNA mixture includes a predominating amount of female DNA with a male, whether minor or partial, profile. A male‘s Y-STR profile will be the same as his father‘s, brother‘s, paternal grandfather‘s, and anyone in his patrilineal line. The majority of the DNA taken from each location contained a predominance of Ms. McSween‘s DNA; using the Y-STR test,
{¶26} The Y-STR DNA test found on the driver‘s-side, rear door of Ms. McSween‘s vehicle was the same Y chromosome DNA within appellant‘s patrilineal line. When extrapolating inheritance and сommon ancestors of everyone in the United States, there is approximately one in 1,909 statistical frequency of males with the same DNA profile.
{¶27} With respect to the swabs taken from Ms. McSween‘s body, the Y-STR test of the vaginal swab revealed a single, male profile consistent with appellant. Comparing all profiles taken in the course of the investigation (altogether, 49), all males were excluded as a contributor to the male DNA, with the exception of appellant. According to Dr. Karen Zavarella, a forensic scientist, one would expect this profile to occur, given the available comparative United States’ data, a frequency of one in 699 male individuals. Moreover, a fingertip swab and right-hand swab of Ms. McSween yielded a partial profile consistent with appellant. All other males tested were excluded. The statistical frequency of this profile is one in 333. Finally, the rectal swab taken from Ms. McSween yielded a partial profile consistent with appellant and, similar to the previous test results, excluded all оther males tested. The statistical frequency of this profile is one in 442.
{¶29} Appellant now appeals and assigns ten errors for our review. His first assignment of error provides:
{¶30} “The trial court erred when it failed to suppress evidence obtained through law enforcement‘s unlawful, warrantless seizure of Joseph Thomas’ boots. Fourth and Fourteenth Amendments, U.S. Constitution; Article I, Section 16, Ohio Constitution.”
{¶31} “An appellate court‘s review of the grant or denial of a motion to suppress presents a mixed question of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶8. “During a hearing on a motion to suppress evidence, the trial judge acts as thе trier of fact and, as such, is in the best position to resolve factual questions and assess the credibility of witnesses.” State v. Lett, 11th Dist. Trumbull No. 2008-T-0116, 2009-Ohio-2796, ¶13, citing Burnside, supra, at ¶8. “An appellate court reviewing a motion to suppress is bound to accept the trial court‘s findings of fact where they are supported by competent, credible evidence.” Id. “Once the trial court‘s factual determinations are accepted, the appellate court then conducts a de novo review of the trial court‘s application of the law to those facts.” Wickliffe v. Dust, 11th Dist. Lake No. 2005-L-129, 2006-Ohio-2017, ¶8, citing State v. Dohner, 11th Dist. Portage No. 2003-P-0059, 2004-Ohio-7242, ¶10.
{¶33} Appellant does not take issue with the trial court‘s factual findings; instead he asserts the trial court viоlated his
{¶34} The
* * *
{¶35} ““Immediately apparent’ means that the officer must have had probable cause to believe the item is contraband.” State v. Seibert, 5th Dist. Tuscarawas No. 2004-AP-060048, 2005-Ohio-275, ¶17, citing Arizona v. Hicks, 480 U.S. 321, 326 (1987). “Probable cause merely requires that the facts available to the officer would warrant a person of reasonable caution in the belief that a certain item may be contraband. A practical probability that incriminating evidence is involved is all that is required.” Seibert, supra, citing Texas v. Brown, 460 U.S. 730, 742 (1983). “Such association may arise from the character of the property itself or * * * from the circumstances in which the property is discovered.” State v. Halczyszak, 25 Ohio St.3d 301, 305 (1986). “[P]robable cause,” implies a “practical, nontechnical’ probability that incriminating evidence is involved.” Brown, supra. In making the probable cause determination, a police officer can rely upon his specialized knowledge, training, and experience. Halczyszak, supra, paragraph four of the syllabus. “Where police cannot fairly make a determination based on this standard, then the subject of inquiry requires the more technical determination which the magistrate alone is capable and empowered to make.” Id.
{¶36} Appellant first asserts the plain-view exception to the warrant requirement does not apply to the seizure of his boots because the incriminating nature of the boots was not immediately apparent.
{¶38} [T]he circumstances in which the property was discovered gave rise to a probability that incriminating evidence was involved. Prior to the April 21, 2011 interview, the police knew that shoe impressions from the crime scene existed, and that items belonging to the victim had been retrieved from the place the defendant resided at the time of the murder. At the April 21, 2011 interview, the police further learned that the defendant only owned the shoes he was wearing and that he owned and wore these shoes at the time of the murder. Thus, they had probable cause to believe that the defendant‘s shoes might be consistent with the shoe impression obtained from the crime scene, or that there may have been some other, albeit microscopic, transfer of evidence between the scene and the shoes.
{¶39} In light of the information available to law enforcement during the interview at which the boots were seized, particularly appellant‘s acknowledgement he was wearing the shoes on the night of the murder, we conclude officers had probable cause to seize them pursuant to the plain view exception. In light of this conclusion, we need not analyze the applicability of the exigency exception to the warrant requirement.
{¶40} Appellant‘s first assignment of error lacks merit.
{¶41} Appellant‘s second assignment of error provides:
{¶42} “The trial court erred when it allowed expert testimony from the state‘s witness who did not prepare or provide a report on new DNA evidence to the defense 21 days before the trial began.
{¶43} “A trial court‘s ruling on evidentiary issues, including the admissibility of expert opinions, will not be reversed on appeal absent an abuse of discretion and proof
{¶44} Expert Witnesses; Reports. An expert witness for either side shall prepare a written report summarizing the expert witness‘s testimony, findings, analysis, conclusions, or opinion, and shall include a summary of the expert‘s qualifications. The written report and summary of qualifications shall be subject to disclosure under this rule no later than twenty-one days prior to trial, which period may be modified by the court for good cause shown, which does not prejudice any other party. Failure to disclose the written report to opposing counsel shall preclude the expert‘s testimony at trial.
{¶45}
{¶46} In this matter, defense counsel indicated his intent to use certain images of alternate suspeсts during opening. The alternate suspects, however, had not been subjected to DNA testing. The state argued it was unaware of the defense‘s strategy and should be permitted to conduct DNA testing to support its theory of the case if the defense raised the alternate-suspect theory during opening. The defense countered, asserting the state could have tested the alternate suspects’ DNA prior to trial and within the
{¶48} We conclude the trial court did not abuse its discretion by modifying the 21-day requirement because the state advanced good cause for the modification. The alternate suspects in this case were Richard Sanden, Gary Stroud, Miro Panic, and Mirko Brcinociv. The state obtained DNA from Mr. Stroud, Mr. Panic, and Mr. Brcinociv; as indicated above, they were excluded from the blood swabbed from the victim‘s vehicle. The fourth suspect, Mr. Sanden was apparently not tested and thus, there is no
{¶49} With this in mind, there was no evidence submitted or elicited that indicated any of the remaining three alternate suspects were at or near the bar or crime scene on the night in question. Had the court deniеd the state an opportunity to test the individuals, the jury would have been permitted to speculate that one of the men descended upon the victim and brutally murdered her without a reasonable, supportive
{¶50} Further, the defense was not unjustly ambushed by the report. Dr. Zavarella‘s report was submitted to the defense several days before her testimony thereby allowing its expert, Dr. Julie Henning, some opportunity to review the report prior to Dr. Zavarella‘s testimony. Finally, the report did not necessarily undermine the defense‘s alternate-suspect theory: Although the tests at issue excluded the alternate suspects from the DNA on the vehicle, Dr. Zavarella did not specifically testify they were excluded from other sources of DNA mixtures, including those found on Ms. McSween‘s body as well as partial, unidentified male profiles found in her underwear. We accordingly discern no prejudice in the admission of the subject evidence. The trial court did not abuse its discretion in allowing the report outside of rule because the state established good cause and the defense did not suffer unfair prejudice.
{¶51} Appellant‘s second assignment of error lacks merit.
{¶52} For his third assignment of error, appellant asserts:
{¶53} “The trial court erred when it excluded evidence of polygraph and EyeDetect tests which denied Mr. Thomas his Constitutional right to present a complete defense. Fifth, Sixth and Fourteenth Amendments, U.S. Constitution; Art. I, Sections 1, 10 and 16, Ohio Constitution.”
{¶54} Appellant‘s counsel filed a motion, pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), to use EyeDetect and polygraph evidence during trial to support appellant‘s assertion of innocence. After a hearing, the trial court
{¶55} Those charged with crimes are guaranteed “a meaningful opportunity to present a complete defense.” California v. Trombetta, 467 U.S. 479, 485 (1984). Rulings excluding favorable evidence are unconstitutional when they arbitrarily or disproportionately infringe upon an accused‘s weight interest to present a complete defense. United States v. Scheffer, 523 U.S. 303, 308 (1998).
{¶56} Daubert, supra, was adopted by the Supreme Court of Ohio in Miller v. Bike Athletic Co., 80 Ohio St.3d 607 (1998). See Terry v. Caputo, 115 Ohio St.3d 351, 2007-Ohio-5023, ¶24. In Daubert, supra, the United States Supreme Court held that the language of the Federal Rules of Evidence governs the admissibility of expert, scientific evidence and plaсes the trial court in the position of a “gatekeeper.” “This gatekeeping function imposes an obligation upon a trial court to assess both the reliability of an expert‘s methodology and the relevance of any testimony offered before permitting the expert to testify.” Terry, supra. As such, “the trial judge [has] the task of ensuring that an expert‘s testimony both rests on a reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands.” Daubert, supra, at 597.
{¶57} With this in mind, “[p]olygraph test results are generally inadmissible to prove an accused‘s guilt or innocence” unless: “(1) the parties have stipulated their admissibility; (2) the court confirms the examiner‘s qualifications and test conditions; (3) the opposing party has had the opportunity to cross-examine the polygraph examiner; and (4) that the results do not tend to prove or disprove any element of the crime
{¶58} Initially, the polygraph results are clearly relevant to appellant‘s defense. With respect to reliability, however, the trial court concluded that “[p]olygraph tests are based on a theory that is not objectively verifiably or validly derived from widely accepted knowledge, facts, or principles and are therefore not admissible under
{¶59} This court recently had occasion to address the admission of polygraph evidence in Cleavenger, supra. In discussing the pitfalls of polygraph evidence, this court observed “it is * * * easy to see why courts are loathe to admit [polygraph] results absent, inter alia, mutual stipulation because, regardless of the foundation and exploration of the science behind the polygraph, it is unclear that any technique or instrument is sufficiently ‘acceptable’ among scientists whose approval is a precondition to judicial recognition.” Id. at ¶38.
{¶60} Because there was no stipulation to admitting the polygraph evidence and the trial court properly found such results are not necessarily reliable, we conclude it did not commit error when it found the results inadmissible.
{¶61} Appellant‘s third assignment of error lacks merit.
{¶62} Appellant‘s fourth assignment of error provides:
{¶63} “Joseph Thomas was denied the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984). Sixth
{¶64} To prevail on a claim of ineffective assistance of counsel, an appellant must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984). State v. Ziefle, 11th Dist. Ashtabula No. 2007-A-0019, 2007-Ohio-5621, ¶20. As such, appellant must show that counsel‘s performance was deficient and must additionally show prejudice resulting from the deficient performance. State v. Jackson, 11th Dist. Ashtabula No. 2002-A-0027, 2004-Ohio-2442, ¶9.
{¶65} Appellant first argues that trial counsel was ineffective for failing to make a specific argument that the alternate-suspect DNA had little probative value which was substantially outweighed by its unfairly prejudicial impact. He contends that although counsel objected pursuant to
{¶66} Initially, as discussed under appellant‘s secоnd assignment of error, that the state did not offer any evidence that would exclude the alternative suspects from the victim‘s body or clothing would arguably help the defense; that is, if they are not overtly excluded from the victim‘s body and clothing, the jury was free to consider the possibility they could not be excluded from those samples.
{¶67} Moreover,
{¶68} Next appellant argues counsel was ineffective for failing to make arguments in mitigation at sentencing. As appellant notes, counsel intentionally did not offer any mitigation evidence at sentencing; he stated on record: “Judge, we know the Court has limited options with respect to sentencing, because of the juror‘s verdicts. I‘ve advised Joe not to make any statements with respect to allocutions. It is our intent to appeal this.” Appellant underscores that, in his first trial, which was a capital murder case, counsel, during the mitigation phase, submitted exhibits, testimony from various family members and other individuals. Our appellate record, however, does not include a transcript of those proceedings and, as a result, we cannot assess the nature of the mitigation evidence counsel could have submitted.
{¶69} We recognize, pursuant to
{¶70} Appellant‘s fourth assignment of error lacks merit.
{¶71} Appellant‘s fifth assignment of error provides:
{¶72} “The trial court abused its discretion when it admitted excessive, duplicative, and highly prejudicial photographs at trial.
{¶73} Appellant takes issue with the prosecution‘s introduction of some 37 autopsy photos. He argues the trial court erred in admitting them as they were excessive, duplicative, and prejudicial.
{¶74} As pointed out above,
{¶75} While it is true that the sheer number of photographs admitted may constitute error where they are needlessly cumulative,
Evid.R. 403(B) , the mere fact that there are numerous photos will not be considered reversible error unless the defendant is prejudiced thereby. Absent gruesomeness or shock value, it is difficult to imagine how the sheer number of photographs admitted can resultin prejudice requiring reversal. State v. DePew, 38 Ohio St.3d 275, 281 (1988).
{¶76} Recently, the Supreme Court has revisited this issue, pointing out:
{¶77} [W]e caution trial courts to closely scrutinize the crime-scene and autopsy photos that are offered as exhibits in murder trials. The admission of gruesome photos exposes the jurors to horrific images, and when those photographs go to an element of the offense that is clearly proven by other evidence, they serve no useful purpose whatsoever. Instead, such exposure only serves to inflame the passions of jurors and risks subjecting them to harm. A few crime-scene photos showing the body along with the coroner‘s testimony will often suffice. State v. Ford, 158 Ohio St.3d 129, 2019-Ohio-4539, ¶ 257.
{¶78} First, appellant asserts the photographs of the victim‘s blood-covered face, body, and brain with scalp pulled contain minimal probative value because the wounds were either partially or entirely obscured. We agree that the photos of the crime scene and autopsy are disturbing, and the circumstances of the murder are horrific. Nevertheless, the photos of the victim‘s blood-covered body and face certainly demonstrate that many of the various wounds occurred prior to her death; similarly, the photo of her brain shows, per Dr. Galita‘s testimony and report, she suffered from a brain hemorrhage, which contributed to her death.
{¶79} Next, appellant argues two photos of the victim‘s left hand depicting defensive wounds were duplicative. Appellant is correct thаt the photos depict essentially the same injuries, one is simply a closer view. Still, these photos were taken after the victim‘s body had been washed and they are not particularly gory. And, the defensive nature of the wounds show the cuts occurred in the course of a struggle and thus likely were pre-mortem; in this regard, the photos, while substantially similar, provide a greater context to understand the circumstances immediately prior to Ms.
{¶80} Appellant further asserts two photos of the surgically opened neck wound, revealing the severed carotid artery are essentially the same. While the photos are similar, one photo depicts the wound closely and the other at some distance. The photos are not cumulative and provide the viewer with a different perspective of the size and character of this aspect of the fatal attack.
{¶81} Appellant next contends the two photos of the victim‘s genitalia are unnecessarily duplicative. These photos depict the injuries the victim sustained around the genital area; one of the photos provides visual context for Dr. Galita‘s testimony regarding his examination of that region during the autopsy. Hence, we do not view these images duplicative.
{¶82} Similarly, appellant challenges the admission of 10 photos of the victim‘s genitalia and anus. While we agree the photos are unpleasant, they were probative of Dr. Galita‘s testimony which established a foundation for the rape charge. The doctor testified that the damage to these areas resulted from a blunt, cylindrical object being forced into the victim‘s vagina and anus. These photos were therefore not cumulative, and their probative value was not substantially outweighed by the danger of unfair prejudice.
{¶83} Appellant‘s fifth assignment of error lacks merit.
{¶84} Appellant‘s sixth assignment of error provides:
{¶85} “The trial court erred when it sentenced Joseph Thomas to life without the possibility of parole despite the fact that the record clearly and convincingly did not
{¶86} Appellant challenges his sentence under this assignment of error. First, he claims that
{¶87} A party asserting a statute is unconstitutional has the burden to prove the statute is unconstitutional beyond a reasonable doubt. State v. Brownfield, 12th Dist. Butler No. CA2012-03-065, 2013-Ohio-1947, ¶ 8. At the same time, “courts have a duty to liberally construe statutes in order to save them from constitutional infirmities.” Eppley v. Tri-Valley Local School Dist. Bd. of Edn., 122 Ohio St.3d 56, 2009-Ohio-1970, ¶ 12, citing Desenco, Inc. v. Akron, 84 Ohio St.3d 535, 538 (1999).
{¶88}
{¶89} With respect to appellant‘s equal protection argument, the Second Appellate District has determined that an aggravated murder defendant who receives a sentence of life without the possibility of parole is not a member of a suspect class. State v. Burke, 2d Dist. Montgomery No. 26812, 2016-Ohio-8185, ¶ 20. Moreover, as indicated previously,
{¶90} “The rational-basis test involves a two-step analysis. We must first identify a valid state interest. Second, we must determine whether the method or means by which the state has chosen to advance that interest is rational.” McCrone v. Bank One Corp., 107 Ohio St.3d 272, 2005-Ohio-6505, ¶ 9.
{¶91} “The General Assembly‘s practice of treating sentencing for aggravated murder and murder convictions differently from other felonies is longstanding. Before
{¶92} The General Assembly has a valid and reasonable interest in treating criminal offenses differently, based upon the perceived severity of the crime or felony. Moreover, it is neither arbitrary nor unreasonable to treat aggravated murder and murder differently than other classified felonies. Because these crimes necessarily involve the purposeful termination of another‘s life, they could reasonably be viewed as the most severe crimes, thus necessitating a different statutory procedure for purposes of sentencing and appeal. We therefore hold appellant has failed to demonstrate that
{¶93} Although appellant takes issue with the trial court‘s imposition of life imprisonment without the possibility of parole, our conclusion(s) that
{¶94} Appellant‘s sixth assignment of error lacks merit.
{¶95} Appellant‘s seventh assignment of error states:
{¶97} Pursuant to
{¶98} “The doctrine of invited error holds that a litigant may not ‘take advantage of an error which he himself invited or induced.‘” State v. Campbell, 90 Ohio St.3d 320, 324 (2000), quoting Hal Artz Lincoln-Mercury, Inc. v. Ford Motor Co., 28 Ohio St.3d 20 (1986). The record must demonstrate that defense counsel induced or was actively responsible for the trial court‘s error for the trial court‘s error. Campbell, supra, citing State v Kollar, 93 Ohio St. 89, 91 (1915). This means defense counsel must suggest, request, or actively consent to the improper procedure. Campbell, supra.
{¶99} Here, the triаl court did not specifically address appellant personally and ask if he wished to exercise his allocution right. Defense counsel, however, expressly told the trial court that he advised appellant not to exercise his right to allocution. There are many reasons why counsel may have so advised appellant, not the least of which would be preventing appellant to say something inculpatory that might be used against him and potentially jeopardize his appeal. Regardless, any error in the court failing to personally address appellant was due to defense counsel‘s affirmative and explicit
{¶100} Appellant‘s seventh assignment of error lacks merit.
{¶101} Appellant‘s eighth assignment of error asserts:
{¶102} “Mr. Thomas’ convictions are not supported by the manifest weight of the evidence.
{¶103} A court reviewing the manifest weight observes the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Schlee, 11th Dist. Lake No. 93-L-082, 1994 WL 738452, *5 (Dec. 23, 1994).
{¶104} Appellant first asserts the state failed to prove motive, opportunity, intent, and means. The state was not required to establish motive, opportunity, or means. Still, the state did advance circumstantial evidence that appellant was agitated about a breakup; he was present and, indeed, was the last individual at the bar. Finally, testimony indicated he was carrying a knife in his pocket. And, to the extent the jury believed the state‘s theory of the case, the murder was committed with obvious purpose, thereby establishing intent.
{¶105} The state introduced evidence that appellant was at Mario‘s Lakeway Lounge on the night of the murder; witnesses testified that he was irritated because he and his girlfriend had broken up earlier in the evening. Appellant was also seen with a
{¶106} All men at the bar that night were swabbed for DNA and tested. In preparation for the second trial, Hallie Dreyer performed Y-STR DNA tests, which isolates the male Y chromosome from a sample - this test was not performed in appellant‘s first trial. All males, other than appellant, were excluded as contributors to the DNA mixture found on Ms. McSween‘s vehicle as well as the mixture taken from Ms. McSween‘s body. Appellant takes issue with Ms. Dreyer‘s testimony that Y-STR testing cannot point specifically to an individual contributor; although this point is worthy of consideration, it overlooks the important point that the results are capable of identifying the Y chromosome within a particular patrilineal profile. Again, appellant‘s patrilineal profile could not be excluded, but all other males tested were.
{¶107} Furthermore, Robert Jenkins, the neighbor of Susan Gorsha, the residence where appellant was staying at the time of the murder, reported witnessing what he described as a man burning something in a barrel early оn the morning of November 26, 2010. When police seized the barrel and searched its contents, they found Ms. McSween‘s burned clothing and some personal effects. And, although appellant admitted to his house-mate Jackie Miller he was at the bar the morning after the murder, he denied being present to his girlfriend, Linda Roncalli.
{¶108} While we acknowledge this is a challenging case, we nevertheless conclude there was sufficient, credible circumstantial evidence for the jury to conclude, beyond a reasonable doubt, appellant committed the aggravated murder of Annie McSween.
{¶110} Appellant‘s eighth assignment of error lacks merit.
{¶111} Appellant‘s ninth assignment of error provides:
{¶112} “The trial court‘s statements to the jury and media communications constitute judicial bias in violation of Joseph Thomas’ right to due process.
{¶113} Due process requires that a criminal defendant be tried before an impartial judge. State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, ¶ 34. Judicial bias involves “a hostile feeling or spirit of ill will or undue friendship or favoritism toward one of the litigants or his attorney, with the formation of a fixed anticipatory judgment on the part of the judge, as contradistinguished from an open state of mind which will be governed by the law and the facts.” Id.
{¶115} Initially, appellant did not object to the comments, request recusal, or seek disqualification. Because appellant did not take issue with the court‘s statements, he has forfeited the issue on appeal. See State v. Dean, 146 Ohio St.3d 181, 2015-Ohio-4347, ¶ 223. Even had the issue been properly preserved, however, it lacks merit. The judge‘s comments, while direct, demonstrate he was circumspect regarding the integrity of the proceeding. We do not perceive any of the court‘s comments as hostile to appellant or evincing an unfair bias toward his defense. We consequently fail to see how the judge‘s remarks represent a violation of appellant‘s due process rights.
{¶116} Next, appellant asserts his due process rights were violated because the trial court purportedly encouraged media outlets to provide coverage because the cаse was “extremely interesting.” Appellant points to an email between the trial judge and Court TV and asserts the communication underscores the trial court‘s “continued solicitation of national coverage.” We fail to see how the trial court‘s interaction with the media in any way compromised the fairness of the proceedings or the trial judge‘s objectivity. The email does not reflect hostility of favoritism to either side; and, actually,
{¶117} Appellant‘s ninth assignment of error lacks merit.
{¶118} Appellant‘s final assignment of error provides:
{¶119} “The cumulative effect of the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, and Ninth Assignments of Error denied Joseph Thomas a fair trial.
{¶120} Under his final assignment of error, appellant asserts his convictions should be reversed based upon the cumulative errors throughout the proceedings. Because, however, we find no error, there can be no cumulative error.
{¶121} Appellant‘s tenth assignment of error lacks merit.
{¶122} For the reasons discussed in this opinion, the judgments of the Lake County Court of Common Pleas are affirmed.
THOMAS R. WRIGHT, J.,
MATT LYNCH, J.,
concur.