*1 Conclusion BTA. reasons, of the we affirm the decision foregoing For the 53} {¶ Decision affirmed. O’ConnoR, C.J., Lanzinger, Kennedy, FRENCH, O’Donnell, Pfeifer, O’Neill, JJ., concur. Gillis, L.L.C., appellant. Mark H. for Group,
Rich & Gillis Law Bates, TaDa Co., L.P.A., appellee for and Christian M. & Associates Corsaro Investments, L.L.C. Fowler, Attorney, and Mark W. O’Brien, County Prosecuting Delaware
Carol County Auditor and Delaware Prosecuting Attorney, appellees Assistant Board of Revision. Appellant. Thompson, Ohio, Appellee, State
been sentenced to death below, affirm convictions and For the reasons Joshua Miktarian. sentence.
I. BACKGROUND Following Miktarian, the murder of Officer the state charged Thompson *2 2903.01(B) (E). two counts of aggravated murder under R.C. and Each count carried three death specifications: purposely a killing law-enforcement officer, 2929.04(A)(6), detection, R.C. killing 2929.04(A)(3), to escape R.C. detention, 2929.04(A)(4). killing while under R.C. The state also charged Thomp- son with two counts of escape, arrest, two counts of resisting three counts of evidence, tampering with and one count of carrying concealed weapon. Every count of the indictment also carried least one firearm specification. Thompson’s jury trial commenced in 2010. {¶ 3}
A. The State’s Case Chief
1. Rav’s Bar A little after midnight July on {¶ 4} Thompson picked up his girlfriend, Roberson, Danielle they drove to Rav’s Tap Creekside and Grill (“Rav’s Bar”). bartender, Jira, The John recognized Thompson regular as a customer who typically ordered one beer and never caused trouble. That night, Jira served Thompson single Budweiser draft at 12:30 or 1:00 a.m. Rav’s Bar patron Steven Bartz man, testified that he saw a woman and a
whom he later identified as Thompson, sitting at night. the bar that He said he had heard Thompson making angry Bartz, comments. According to beer, was drinking a was “slamming bar,” on glass pretty “was drunk.” Bartz heard Thompson say to his companion, “There’s demons me” * and “I will kill f* any one *er that threatens me.” Bartz also testified that * * said, “Nobody understands the s* I’ve done and am capable of doing. I can’t even talk about it.” Stop
2. Traffic Around 1:50 a.m. July 13, Miktarian was {¶ 6} en route to the Twinsburg police station. He was wearing police uniform and driving a marked police cruiser. His police dog, Bagio, was with him. Miktarian began following car near the intersection of State
Route 91 and driver, Glenwood Drive. Another Natalie Spagnolo, testified that she saw a police cruiser turn on its lights and follow a car onto Glenwood Drive that night. The car was playing music loudly so that she could hear it over her own loud music even though her windows up. were At a.m., about 1:55 Miktarian dispatch called to report a traffic at a stop residence on “Glenwood near 91.” had pulled into his driveway on him. Miktarian driveway behind into the Glenwood, pulled and Miktarian later, minutes two Approximately number —“ITNL.” plate license provided backup. requested number on the Franco, license-plate ran the Christine dispatcher, owner that the Her search revealed at 1:55 a.m. System Data Enforcement Law after Moments a concealed firearm. carry had a license the vehicle I is he has thing know only “The reported, Franco backup, requested Miktarian respond. did not Miktarian right carry.” has a a—he the radio over backup request Miktarian’s Quinn heard Patrick Officer Miktarian asking wrong.” responded, He possibly something “figur[ed] cruiser and then answer, “ran to Quinn [his] so did not he had.” Miktarian “what activated.” and sirens lights with [his] left the station call from later, phone received dispatcher Moments *3 a.m., the sound of woke to Spisak Around 2:00 Mary Spisak. neighbor, next-door and called to sounds popping She heard five open her window. yelling outside dispatcher yard.” neighbor’s in the next-door “shooting arguing and report Miktarian, respond. still did not but he this information relayed near heard sounds they popping had other witnesses testified Three {¶ 12} witnesses, Douglas time. Two of the around the same Drive Glenwood of State in a car at the intersection stopped were Joseph Werling, and Szymanski a cruiser 200 to lights police they Drive when saw Route 91 and Glenwood a onto and saw They drove Glenwood gunshots. and heard four away 300 feet on. lights with its overhead driveway police parked cruiser Quinn arrived first at scene. Officer arrived quickly Officers {¶ 13} Another officer on, other vehicles. but no lights cruiser with its saw Miktarian’s had no to his cruiser. Miktarian ground on the next arrived and saw Miktarian arrived. medical services signs emergency vital when in Miktarian’s insurance card were driver’s license and {¶ 14} front shirt pocket. Thompson’s Arrest local law enforcement the assistance of other Twinsburg police enlisted
{¶ 15} a.m., Department Police Heights the Bedford Around 2:00 Thompson. to locate on jurisdiction, in their address prior had received notice investigate. Three officers went Cambridge Drive. Vanek, Sandoval, a.m., Anthony Officer David Sergeant Around 2:20
{¶ 16} They saw Cambridge Drive address. arrived Kimberly Callieham Officer driveway. Vanek also standing women and one three people man— —two at the open garage inside an parked “ITNL” plate with the license saw a vehicle driveway. top of the women, Robinson, and she began question Bridget Vanek one inquiring Thomp-
said she was sister. While Vanek was whereabouts, son’s he heard a loud disturbance inside the house. He realized woman, Roberson, the other later identified as Danielle had left driveway. door; approached Vanek the house and the screen the main door opened He already open. pair saw man—later identified as had a —who off hanging right handcuffs his wrist. Vanek confronted in the
kitchen, struggle and a ensued. One officer seized a 9 mm handgun Kel-Tec stovetop, from the and another arrested him custody. and took into Physical Evidence At booking, Sergeant Greg photographed Thompson, Feketik his clothes shoes, wrist, a small cut on wearing, and the handcuffs he was which were marked with badge Miktarian’s number. Later forensic confirmed the testing presence profile of blood with DNA consistent with Miktarian’s profile DNA on shoe, watchband, Thompson’s left and shirt and on the barrel the recovered gun. Trelka, Dr. Darin a deputy Cuyahoga County, then coroner for per-
formed an autopsy July 2008. Trelka classified Miktarian’s death as a homicide and gunshot determined he died from four wounds to the head. Officers from the crime-scene unit photographed documented the scene Glenwood Drive and collected They spent evidence. recovered three bullets, and the medical examiner recovered a fourth bullet from Miktarian’s skull during the autopsy. *4 driveway, On the the crime-scene-unit a pair officers found of Miktari- Taser,
an’s handcuffs and his which had been activated but not fired. Miktarian’s was still in a handgun triple-retention duty holster on his belt. Officers also recovered a broken liquor bottle next to the sidewalk observed, small, Thompson’s collect,
front of house. Two officers not a but did yellowish-grey, chewed-up driveway. They food substance on the later believed garlic, the substance was because a search of car a Thompson’s uncovered baggie containing garlic cloves. Detective Jason Kline that sometimes explained persons who have been drinking garlic talking chew when to to cover the police odor of alcohol on their breath. home, Inside Thompson’s receipt documenting officers found a his of a 9 mm
purchase handgun. gun Kel-Tec The serial number of the listed on on receipt gun Cambridge matched the number found at the house on Drive, subsequent testing and ballistics confirmed that the bullets and shell spent casings gun. recovered from the crime scene had been fired from that
B. The Defense’s Case witness, Rober- one Danielle Roberson. trial, presented At the defense 25} {¶ dating Thompson shooting, she had been the time of the testified that at son years. two approximately her Roberson, picked and his friend July Thompson to According 26}
{¶ Thompson’s off midnight. dropping a little After house after at her mother’s up to Rav’s Bar. Roberson testified friend, and Roberson went Thompson Thompson being angry did not of beer. She recall Thompson drank one-half night. alcohol that consuming any additional At the Thompson’s house. The left the bar and headed toward couple 27}
{¶ Drive, saw cruiser police Roberson Route and Glenwood intersection State left turned and drove light green, Thompson turned right. to the When she the officer make U-turn driveway. Roberson said saw short distance to his corner, lights overhead were not turned the but the cruiser’s Thompson’s car as Roberson, driveway Thomp- into the behind According pulled to officer on. lights car and turned his on. son’s then the car Thompson get started out of testified she Roberson they stayed in the car. She said that approaching, then saw the officer so
but city all that “[W]hy you running through my Thompson, officer asked are * * car.” boom, boom, your I all this s* The officer ought rip boom. out for two and miles following Thompson indicated that he had been one-half then license why stopped. The officer took driver’s and asked he had had had to drink. anything insurance card and asked whether he testimony Thompson It from out of the got is not clear Roberson’s when Roberson, the officer car, point. According “slapped” he did at but some up ground. wrist ended on the handcuff on somehow out if tried dog that the officer threatened let the Roberson testified for his belt. Then he “slammed” onto the hood anything reached cruiser, away, turned saw the the side fender. As Roberson she over Thompson. side. officer was behind Rober- right right officer reach officer fell. Roberson Thompson turn around and shoot the officer. The son saw view, blocking was because the car was her longer happening, could no see what testimony, shots. in her she said that she heard two more Later but fired those shots. standing over the officer when he two *5 car, Roberson, told and Thompson get to her to back According {¶ 30} to later arrived at sister’s they drove his sister’s home. Officers tore Thompson During struggle, Thompson and the kitchen. house tackled Ultimately, Thompson. officers handcuffed refrigerator off the door.
C. State’s Rebuttal The state recalled Detective Kline to the stand rebuttal. Kline {¶ 31} testified he had listened to recordings Thompson’s jailhouse phone conversations with Roberson. The prosecution played recording May of a 2009 conversation Thompson between and Roberson. On the recording, Thomp- explained son that he had been “pissed” night of Miktarian’s death because Roberson “half had been dressed” when he and a friend arrived to pick up. her just tired, trip had returned from a and was and Roberson had been calling day all him. asking see Sentencing
D. Verdict and trial, After a five-day jury convicted of both aggravated- murder counts all specifications. and associated was also convicted arrest, evidence, escape, resisting tampering with carrying concealed weapon. The court dismissed one of the escape pursuant counts to Crim.R. The trial court merged aggravated-murder the two convictions two of the three specifications death for the mitigation hearing sentencing. After the mitigation hearing, unanimously recommended a sentence of death. The court agreed jury’s with the recommendation and sentenced murder, death for aggravated 2903.01(E), one count of R.C. with two death officer, specifications purposely killing 2929.04(A)(6), a police R.C. killing — detection, 2929.04(A)(3). escape R.C. The trial merged court also the three counts with tampering evidence. counts, The court imposed following sentences for the remaining
with all concurrently other, sentences to be served with except each the terms for the firearm specifications: years seven for the merged specifications, firearm sentences, be served consecutively the other escape, months for 18 months arrest, felony resisting arrest, for 90 days for misdemeanor resisting years five evidence, tampering and 12 months for carrying weapon. concealed Thompson now appeals aggravated his conviction for his murder and sentence, death raising propositions of law. We address some of propositions of law out of order.
II. ANALYSIS Final, Appealable A. Order I, In proposition of law No. Thompson challenges jurisdic- this court’s because, claims, tion to hear appeal final, the trial court failed to issue a 32(C). appealable compliance order in with Crim.R. We conclude that the trial *6 32(C) has to hear jurisdiction court and that this with Crim.R. court complied appeal. 32(C)
1. Crim.R.
appeal-
are
final and
over
not
orders
jurisdiction
This court lacks
3(B)(2);
IV,
2953.02.
Constitution,
Section
R.C.
Article
able.
Ohio
See
32(C)
final,
for a
order
requirements
appealable
the
prescribes
Crim.R.
at
conviction stated:
The
in effect
the time
in a
case.
rule
criminal
verdict, or
plea,
findings,
set
the
the
of conviction shall
forth
judgment
A
based,
Multiple judg-
and the sentence.
which each conviction
upon
If
judgment entry.
in one
the
may be addressed
ments of conviction
is entitled
be
not
or for
other reason
guilty
is found
defendant
shall
judge
judgment accordingly.
the
shall render
discharged,
court
journal.
judgment
the
A
clerk shall enter it on
judgment
the
and the
sign
journal by
on
the clerk.
only when entered
the
is effective
32(C)
(2009), 122
c.
we held
“a
Accordingly,
Ohio St.3d
Former Crim.R.
subject
appeal
final order
under R.C. 2505.02when
judgment of conviction is a
(2)
(3)
(1)
conviction,
sentence,
fact
entry
the
of the
the
judgment
the
sets forth
(4)
indicating
upon the
stamp
entry
the
the time
the
judge’s signature, and
303,
appealable
32(C).
Baker,
197,
2. The Trial Orders Court’s 23, 2010, as sentencing opinion, June court issued R.C. On 2929.03(F) to death on opinion, In the court sentenced requires. counts. That noncapital count and sentences for the capital imposed also filed by journalized. The trial court also opinion signed judge was jury’s finding verdict separate entry recording June entry signed counts and That likewise guilty specifications. of 26 require- comply documents those two Together, judge journalized. final, order. See 32(C) appealable constitute and thus of Crim.R. ments ¶at 17. Ketterer valid, documents, satisfy if that these dispute Thompson does *7 that we Instead, final, argues order. appealable for a requirements
four with Crim.R. compliance their documents to evaluate look to these cannot even nunc subsequent 32(C) (1) by 24 replaced on June was entry the filed because argu- Both (2) an error. contained sentencing opinion the entry tunc pro ments fail. entry corrects a nunc tunc First, pro that when argues case, trial court’s the entry. original entirely replaces it entry,
earlier
com-
hearing
“sentencing
mistakenly
24
stated
entry
June
10,
on June
hearing actually began
10,
sentencing
2006.”
menced on June
entry
change
a nunc
tunc
pro
trial court entered
July
2010. On
only
look
to the
we can
says
24 entry. Thompson
in the
date
June
erroneous
compliance
entry,
24
to evaluate
not to the June
entry,
nunc
tunc
pro
32(C).
Crim.R.
entry.
a nunc
tunc
pro
nature of
misconstrues the
Thompson’s argument
As we “ * * * ‘[hjaving defined as 142, commonly tunc’ pro the phrase ‘[n]une N.E.2d ” ¶ 19, quoting Id. power.’ a court’s inherent legal through retroactive effect Ed.2009). (9th Therefore, entry tunc pro “a nunc 1174 Dictionary Law Black’s But a it corrects.” Id. judgment to the retrospectively nature very applies its it relates back judgment entry; original does not pro entry replace nunc tunc 24 Thus, the trial court’s June disregard need not entry. to the original entry. final, here Second, no order appealable claims that there is contains an error. The sentencing opinion the trial court’s June 23
because despite the (third-degree felony escape), Thompson on Count 3 opinion sentenced court opinion, In the dismissed that count. previously fact that the court had and then felony escape) 4 (fifth-degree 3 with Count merge Count purported five-year counts. This merged to five on the two years sentenced 3, maximum it exceeded the for Count but appropriate sentence would have been 2929.14(A)(5) 4 alone. See R.C. for Count punishment permitted 12-month fifth-degree for a 12 imprisonment a maximum sentence of months’ (authorizing 2929.14(A)(3) impris- years’ a maximum sentence of five (authorizing felony) have been sen- Thompson should felony). Because third-degree onment for to the 3, not have been sentenced 4, not on he could only tenced on Count Count imposed. the court five-year sentence
262 ato claims, trial court’s mistaken reference Contrary this court deprive does not sentencing opinion in the June 23
five-year sentence
jurisdictional.”
errors are not
“[Sentencing
appeal.
over this
jurisdiction
¶
{¶ 47} 32(C). These two opinion compliance and its to evaluate Crim.R. sentencing order, final, we do for a and thus satisfy requirements appealable documents error in the June We also address the jurisdiction Thompson’s appeal. have over subject only a 12-month sentencing by clarifying opinion 23 expressed trial court’s intent as its escape, for accordance with the sentence entry. 24 June
B.
Juror Issues
1. Batson
Challenge
II,
that the
Thompson argues
prosecution
In
of law No.
proposition
race, in violation of Batson v.
juror
excused
No. 6 because of her
prospective
(1986).
79,
1712,
According to
Kentucky, 476
106 S.Ct.
a. Batson v. are A to be tried a whose members right defendant has “the a Accordingly, criteria.” Id. at 85-86. pursuant nondiscriminatory selected jurors prosecution challenges “potential constitutional violation occurs when the jurors group that black as solely assumption on account of their race or on the
263
n willbe unable
a black defendant.”
against
case
to consider
State’s
impartially
to the U.S. Constitution.
89;
Amendments
at
also Sixth and Fourteenth
Id.
see
three-step
Batson,
established
Supreme Court
the United States
“First,
opponent
at 96.
challenges. See id.
adjudicating
for
race-based
test
of racial discrimina
prima
make a
facie case
challenge must
peremptory
of the
433,
whether the
¶ 106;
must “assess the
of’ the
plausibility
see also Batson
98. The court
juror
bearing
“in
of all evidence with a
striking
light
reason for
prosecutor’s
Dretke,
b. Voir juror No. dire, prospective questioned the parties voir During individual trial. juror in a criminal service as African-American, prior her about case, prospective prior in the about the verdict inquired Defense counsel not ask further counsel did stated, jury.” Defense hung “It was a juror 6No. matter. on the questions “follow-up question^]” Later, what he called asked prosecutor 6 had juror No. prospective whether inquired specifically He hung jury. holdout:
been the way and some—the were one side you you Were MR. LOPRINZI: — the— that, maybe you like were it sounded you stated juror. was one SIX: There JUROR [PROSPECTIVE] holding out? MR. Who LOPRINZI: SIX: Yes. JUROR
[PROSPECTIVE] were with the others? you And MR. LOPRINZI: say? supposed Am I JUROR SIX: [PROSPECTIVE] up you. It’s MR. LOPRINZI: is, really getting that he’s The issue up you.
THE It’s COURT: know, affect—(cid:127) any way will that you No. JUROR SIX:
[PROSPECTIVE] 11— were the other you were the one or you THE Whether COURT: other 11. with the if in a here Well, you to also know were we want
MR. LOPRINZI: you willing are way, or innocence either way guilt one for you’re asking. I was It’s hard why And so that’s your ground? up stand if able to do that. do, you’re I was curious why and that’s who— you the one Were extenuating I think he had some JUROR SIX:
[PROSPECTIVE] *10 circumstances. you. Thank Very good.
MR. LOPRINZI: juror No. challenge prospective later used to excuse prosecutor peremptory The immediately challenge. a Batson made the explanations challenging for state offered two race-neutral The First, wanted excuse explained that he juror. prosecutor the prospective was the sole holdout” “implied No. 6 had that she prospective juror because she that although criminal trial. He reasoned juror when as a serving prior on a jurors previously had served prospective day seven of the 50 examined who had on a juror only No. 6 was the one been jury, prospective criminal-trial verdict, have been the sole not reached a and she appeared that had holdout. juror discussed No. judge prospective The then whether prosecutor “I opined, a holdout. prosecutor
6 had in fact indicated she had been The Initially, disagreed, emphasizing, think knew that.” the trial everybody judge if prosecutor “We know” because ask.” The asked the he judge don’t didn’t “[w]e juror. had for the challenging prospective another reason explanation: pro- At offered an point, prosecutor alternative No. worked and one spective juror receptionist department as a the sheriffs judge of her had at the office. The prosecutor’s expressed relatives worked skepticism that of her object seating juror the state would because connec- tions accept with these two offices and declined to this reason. citing then to the it prosecutor explanation, The returned holdout as
“main “it challenge. why very reason” for the He elaborated on was peremptory clear [prospective juror to me that No. was that she was saying 6] [holdout].” prosecutor, juror to the he asked the whether she According prospective when holdout, holdout,” was she “kind of smiled like she was the and he had the impression just say “that she didn’t want to it.” did not want to prosecutor The juror question force prospective directly to answer because did juror want a him. But he was potential firmly resent convinced she had been the holdout. stated, probing prosecutor’s reasoning, judge After “You’re conclusion, conclusion, that
saying you have come to the the firm she was a holdout juror.” judge acknowledged the reason was race-neutral and reason explained pretextual.” that she had decide whether the was “credible judge rejected challenge, Ultimately, prospective Batson juror 6 was excused. No. Complied
c. The Trial with Batson Court argues analysis improper that the trial court’s Batson {¶ No. 6 constitutional juror rights. and that the dismissal of violated his prospective *11 the properly applied that the trial court of the record confirms But our review reject Thompson’s challenge. analysis Batson properly the trial court solely turns on whether Thompson’s argument
{¶ 62}
a
to assess
requires
which
court
inquiry,
third
of the Batson
step
conducted the
“in
prospective juror
light
a
striking
of the
reason
plausibility
prosecutor’s
Dretke,
252,
at
125 S.Ct.
a
on the issue.
545 U.S.
bearing”
of all evidence with
may
simply
a trial court
“not
stage
analysis,
196. At this
162 L.Ed.2d
value,”
“must examine
a
reason at face
but instead
accept proffered race-neutral
merely
that the reason
not
challenges
[was]
context to ensure
prosecutor’s
{¶ 63} ¶at findings comply not factual with Batson. Id. 98. need make detailed “ Rather, opportunity a trial affords the a reasonable long judge parties as ‘[a]s records, on the credibili respective may express ruling make their his Batson rejection of a race-neutral the form of a clear ty proffered explanation ” Id., Duncan, quoting of a Batson Messiah v. 435 F.3d acceptance challenge.’ (2d Cir.2006). 186, 198 Here, fully explored prosecutor’s proffered explana- the trial court credibility. Initially,
tions for in order to their the court challenge evaluate But expressed explanation. probing doubts about the holdout after considerable prosecutor’s prospective and discussion about the basis for the belief holdout, juror This challenge. had been the court denied Batson Batson, the court’s finding step” reflecting denial was “itself the third holdout credible. explanation Roper, determination Smulls (8th Cir.2008); F.3d see also Frazier Therefore, trial court by denying Thompson’s did err Batson
challenge, reject proposition and we of law No. II. Inadequate Dire Yoir Ill, next of law No. that the trial court argues, proposition inquiries violated his constitutional to conduct further about rights failing juror jury after one indicated that members of the pretrial publicity prospective pool discussing Thompson’s guilty plea. had been withdrawn See Sixth and Fourteenth Amendments to the U.S. Constitution. 13, 2009, guilty charges On entered a to the April plea later, him. Months the trial became concerned about
against judge 18, 2009, and scheduled a to retake the On December plea hearing plea. trial. Thompson requested days. for five May and lasted began Voir dire during jurors pretrial publicity questioned prospective
judge parties At the time any group voir dire. conducting voir dire before individual article had detailed the newspaper that a recent judge the trial knew questioning, guilty crime, entry then withdrawal —of Thompson’s previous as well as —and they were aware of Therefore, jurors whether judge prospective asked plea. *12 of the case. procedural history the facts or the concedes, juror who every prospective the excused judge As dire, exception after individual voir with the guilty plea
knew about his withdrawn dire, juror voir No. 51 juror During prospective of No. 51. individual prospective and then he “actually pleaded guilty that knew that had stated she juror, not excuse the because judge immediately prospective recanted.” The did that would the out of her mind and put past guilty plea she assured the court she later, jurors during it. It not until any prospective would not tell other about was dire, juror No. 51. general ultimately prospective voir that the trial court excused relevant Prospective juror knowledge guilty plea No. 51’s of the 70} {¶ dire, juror in voir No. 100 revealed that he prospective because later individual discussing had heard else “in the courtroom or the guilty plea someone prospective juror identify No. 100 was unable to the source pool.” Although information, a originally that he had “heard that there was explained there was a technical and now it’s not guilty plea problem something but juror that this information made it difficult for guilty.” prospective The indicated him to and the trial court excused him for cause. impartial, be trial that objects judge, learning prospec- now after 71}
{¶ jurors discussing guilty plea, have been the withdrawn should have may tive jurors already completed further those who had individual questioned prospective addition, suggests voir dire. In the trial court should have questioned prospective juror talking No. 100 further to learn who was Thompson’s prior plea. within the sound “The manner which voir dire is to be conducted lies Lorraine, 414, 418,
discretion of the trial
v.
66
St.3d
613
judge.” State
Ohio
(1993).
212
what
“great
deciding
questions
N.E.2d
The trial court has
latitude
415, 424,
v.
111
Virginia,
should be asked on voir dire.” Mu’Min
500 U.S.
S.Ct.
1899,
addition,
114
adopted per
L.Ed.2d 493
we have not
se rule
“
[juror]
court
into
instance of
miscon
requires
inquire
‘every
alleged
trial
”
Sanders,
(2001),
quoting
duct.’
v.
92 Ohio St.3d
268 Thompson did Here, more standard because applies an even deferential 73}
{¶
Thomp
we review
Accordingly,
trial court.
objection before the
not raise either
231,
See,
Brinkley,
State v.
105 Ohio St.3d
e.g.,
error.
only
plain
son’s claim
959,
To
must show that
tive Nos. after judge general conducted voir dire May she did further. On inquire conversation, the court made jurors. During all remaining prospective juror have prospective of which would general inquiries, prompted several more about case from the jury pool. to indicate that he or she had learned *13 * * * you told judge to stated: “I had respect publicity, With {¶ 75} your with watch the Is you paper, family, not to read the discuss this news. were them, say accidentally has had a member to anyone family anything there who something saw about this or read flipping something paper the channels prospective juror responded, spoke without it was this case?” One realizing and judge, to the was excused. privately later, inquiries broader judge posed A few minutes several about juror on or her mind that any prospective anything
whether had would First, inquired, she “Is prevent being objective impartial. him or her from * * * who, now, I I can you says, there as sit here don’t think set aside anyone I any knowledge might I can’t set have. Because personal opinions. aside Next, many very knowledge.” had some but not much she you knowledge, “I anyone thinking, lay asked whether would have to aside erase from mind, dire, know, voir I I my just original anything like she told in the me just Finally, don’t think I can do that? No one is their hand.” she raising queried, “Anyone any you’ve through have or ideas about what been so thoughts mind, fresh, far that when trial on you open Monday? can’t start we start the Anyone problem?” responded. that is a No one for whom dire, judge’s voir with the earlier questions during group coupled These “ dire, inquiries about individual voir were sufficient ‘reaso- publicity during ” nably] prejudice be discovered if United present.’ would States assur[e] (5th Nell, Cir.1982), Chagra, quoting 669 F.2d 250 United States v. 526 F.2d (5th Cir.1976). jurors had Prospective repeated opportunities, 1229 even
269 dire, with new voir to come forward completion after of individual case, information from other gained including had knowledge they about short, In Thompson’s guilty plea. jurors and information about prospective 100 juror No. additional by prospective trial not err to ask failing court did of prospective additional individual voir dire questions, by failing or conduct juror through Nos. Moreover, error would alleged failed to establish that the has circumstances, the these trial court
have altered the outcome his trial. Under juror might theoretically need concerned itself that a possibility not have “have of his own difficulty disbelieving forgetting opinion defendant’s reasons, reject proposition fn. 11. For these of law guilt.” Chagra III. No. Prospective Penalty Rehabilitating Against Is the Death Juror Who IV, that the court proposition Thompson argues law No. rights
violated “to standard for by refusing his constitutional follow the exclusion about juror expressing penalty” reticence the death capital juror her prospective defense counsel No. views allowing question Sixth, the death See and Fourteenth Amendments the U.S. penalty. Eighth, 2945.25(C). Constitution; Constitution, I, 10; Ohio Article Sections 9 and R.C. dire, juror individual No. informed the court During prospective voir “the for days possible scheduled trial would be worst time” her be secretary, away Prospective juror from work. No. worked as a school and she 9,10, would to close and 11— days up shop” indicated that she “have three —June day after to the judge explained prospective the students’ last of school. anyone juror that she would be needed back on June and asked whether else perform job could for her She prospective juror’s during period. replied, I and takes “Unfortunately phone not. have an that answers the care of aid[e] *14 children, they judge the sick but don’t have substitute secretaries.” The credited counsel, explanation, any this later “No schools have extra commenting people anymore budget says only I believe her she she’s the because cuts. when person.” on lengthy prospective juror’s After a of the views the death discussion juror
penalty, judge the trial said she wanted to excuse No. for prospective judge independent cause. The record indicates that the two bases contemplated First, juror. juror scheduling for had excusing prospective prospective Second, had an judge juror conflict. that the voiced prospective determined unequivocal penalty. death opposition juror defense prospective Before the court excused No. counsel
{¶ 82} juror requested question an to further about her opportunity prospective want to counsel did not that defense verifying After penalty. on the death views schedule, concluded judge juror about her prospective question prospective judge explained unnecessary. questioning additional her, of her regardless to excuse conflict was “sufficient” juror scheduling 2’s No. penalty. views on the death juror No. dismissing prospective allege any does not error 83} Rules of Criminal Code and the conflict. The Revised scheduling
2 based on her
jurors to be
allowing prospective
catchall provisions
include
Procedure both
to serve as a
any
for
other cause
they
if
are “unsuitable
challenged for cause
24(C)(14).
of this
2945.25(0);
application
A trial court’s
Crim.R.
juror.” R.C.
Leonard, 104
See State v.
only for
abuse of discretion.
provision is reversible
Here,
trial court
54,
4. Failure to Jurors a fair V, rights that his of law No. asserts proposition trial, when the trial court “death process and due were violated equal protection, jurors. Fourteenth jury “life-qualify” prospective but did not See qualified” allege does not that the Amendment to the U.S. Constitution. questioning prospective jurors counsel from prevented court defense instead, voir reflected the court’s bias he that the trial court’s dire point; argues prosecution. favor of the matter, (¶ Thompson’s prospective an initial the trial court did question As jurors jurors. individually The court did not life- seating “death-prone” to avoid However, voir every juror. upon reconvening general qualify prospective dire, jurors: the entire following group prospective the court said the I’m to make sure you sitting jury saying going
If are on this sitting if the death or I’m on this guilty, gets penalty, he’s found the death guilty, get to make sure that if he’s found he does not And, us. no shame you again, now is the time have tell penalty, it, Only you your no harm. know hearts. *15 head, to tell us now. your you
But if have of those ideas need you
271 responded. No one rejected argu- these same repeatedly More this court has important,
{¶ 87}
have the
statutory right
no
or
to
ments in
cases. There is
constitutional
prior
sponte
court sua
juror,
each
even when the
life-qualify
prospective
trial court
Hale,
118,
juror.
v.
119 Ohio St.3d
death-qualifies
prospective
each
See State
Davis,
404,
C. Venue VI, trial court of law No. claims that proposition for a by denying to and to a fair trial his motion rights process violated due According pretrial publicity surrounding of venue. change Thompson, “[t]he a fair trial in Summit case so infected the he was unable obtain [his] County.” Publicity and
1. Pretrial
Venue
criminal
from “inher-
“duty
protect”
Trial courts have a
defendants
unfair.
jury’s
Sheppard
that renders a
deliberations
ently prejudicial publicity”
(1966).
so,
Maxwell,
333, 363,
1507,
86
the discretion of the trial court.” State v.
Ohio St.2d
(1972).
a trial court’s venue
“unless is it
ruling
N.E.2d 352
We will
reverse
trial court
its discretion.” Id. An abuse of
clearly shown
has abused
instead,
implies
than a
it
judgment;
discretion is more
mere error
law
unreasonable,
or unconscionable. Blake
arbitrary,
a trial court’s decision was
Blakemore,
we cannot seat and not before.” asked jurors and prospective 150 17, 2010, trial court called May On
{¶ 93} stages. in two proceeded dire then Voir complete questionnaire. to them jurors individually about prospective First, questioned and counsel judge penalty. the death attitudes about and their pretrial publicity exposure their jurors who indicat- prospective trial court dismissed Throughout process, excused the the court particular, case. knowledge of the significant ed and had later guilty pled that had who knew jurors prospective plea. withdrawn qualified had identified 20, 2010, judge parties May By announced, judge “[W]e’re voir dire. The individual jurors during
prospective correct?” dire, parties, consent of both with the individual voir going stop now motion Thompson’s denied judge The then indicated their consent. parties The of venue. change for a
3. No Actual Bias by denying change that a trial court erred Ordinarily, prove actually juror venue, prospective must show that least one a defendant (2001). Here, 460, 464, Treesh, v. biased. State bias, does not of actual and the record identify any not evidence Thompson does concerns. bear out such did not four alternates. jurors trial court seated The knew and two of the alternates jurors. jurors Five of the
object any of these facts of knowledge had of the basic jurors the case. Three nothing about during stop. killed a traffic One officer was shot and police case: another knew that years prior, occurred two that the incident had only knew victim’s name. The last two Twinsburg and knew the the incident occurred case, knew that facts of the but one underlying jurors nothing recalled times, a news report and the other had heard delayed trial a few had been knew that remaining The two alternates going that the case was to trial soon. of them also knew that the Twinsburg, and one the case involved murder police victim was a officer. of the case any prior knowledge who had Every juror and alternate put or she could voir dire either had stated individual
unequivocally no about the side, opinions that he or she had formed to the knowledge then prospective had deemed the court Thompson’s guilt. case or change for a motion accordingly and had denied jurors qualified every dire, again court verified Later, voir during group venue. prospective juror would set aside preexisting knowledge, thoughts, or ideas about the case. Thompson argues the trial court may rely erred because courts
on a prospective juror’s subjective evaluation of his or her own
fair
ability to be
Florida,
impartial.
In Murphy
v.
421 U.S.
95 S.Ct.
(1975),
L.Ed.2d 589
the United States Supreme
explained
“juror’s
Court
that a
equal
assurances
he is
to this task cannot be
dispositive
the accused’s
rights,” but left it
“open
the defendant” to
juror’s
demonstrate a
actual bias.
so,
Even
judge
Witt,
“who sees and
juror,”
hears the
Wainwright
469 U.S.
*17
412, 426,105
844,
(1985),
S.Ct.
4. No Presumed
Nevertheless, Thompson urges us to presume prejudice.
The United States Supreme
cases,
Court has held that in certain rare
pretrial publicity is so damaging that courts must presume prejudice even
See,
without a showing
333,
of actual bias.
e.g.,
1507,
Sheppard, 384 U.S.
86 S.Ct.
prejudicial that an attempt to seat a jury
Warner,
would be a vain act.’ State v.
31, 46,
(1990),
Ohio St.3d
{¶ amount of pre- 102} trial publicity surrounding this case” and the fact that jury pool “replete the was jurors with potential who had been extensively prejudiced by media accounts.” According Thompson, read, heard, at least jurors discussed, nine had or seen death, an account of Miktarian’s and 20 prospective jurors were excused because they much, knew too knew about guilty plea, or believed Thompson guilty. But fact jurors that seven and two alternates something knew about the hardly above, case is dispositive. jurors As discussed need not be totally ignorant case, about the of a facts and none of these individuals was Dowd, actually biased. See Irvin v. 366 U.S. 81 S.Ct. 6 L.Ed.2d jurors because prospective court fact that the trial excused job its doing that the court was only case confirms too much they knew about not unfair or biased. Thompson’s jury would be ensure light in Second, presume argues prejudice we should 103} {¶ end, points he courthouse. To this jurors prospective between discussions that he heard someone juror No. 100’s statement again prospective He also notes that guilty plea. withdrawn discussing Thompson’s courthouse alternate, judge told the she was later seated as juror No. who prospective hallways. case Under the jurors discussing the prospective had overheard further. circumstances, judge inquired should have And Thompson says, not, presume prejudice we should now. says because she did First, prejudice. as presume are reasons to compelling These 104} {¶ Ill, by failing trial court did not err proposition of law No. discussed jurors already qualified prospective questioning further individual conduct Second, ease. jurors discussing had been hearing prospective after some knew about juror does not seated or alternate the record indicate Third, by prospective the conversation overheard Thompson’s past guilty plea. whether juror speculating only was of no She heard import. people No. 86 Twinsburg.” “that murder case in this was facts of his to those other Finally, Thompson analogizes the case *18 presumed the has See Supreme prejudice. in which United States Court
cases Louisiana, 1507, 600; 333, 16 384 U.S. 86 S.Ct. L.Ed.2d Rideau v. 373 Sheppard, Irvin, 723, 1417, 10 (1963); 717, 1639, 83 L.Ed.2d 663 366 U.S. 81 S.Ct. U.S. S.Ct. But in this not begin approach 751. the case did even to the publicity L.Ed.2d influence those cases. pervasive present level sum, to actual In fails establish bias on his to 106}
{¶ presume that this case in must As a prejudice. demonstrate is the rare which we result, reject of law No. VI. proposition Improper
D. Evidence VII, claims trial of law No. that the court proposition 404, as when it rights, violated Ohio Evid.R. 403 and well as his constitutional made permitted testify Thompson allegedly Steven Bartz to about statements at Sixth, Bar. See and Fourteenth Amendments to the U.S. Constitu- Eighth, Rav’s Constitution, tion; Article Sections 9 and 10. Ohio trial ruled on the of this evidence initially admissibility The court 108} {¶ began. May judge understanding the indicated her before the On shortly Bar Bartz had five statements in Rav’s Thompson making overheard statements, objected that all night the of murder. The defense these before Evid.R. The court unfairly prejudicial. See although probative, were to component, decided exclude two statements that had a racial found but (1) remaining unfairly prejudicial: three statements were not “There’s * (2) (3) me,” me,” if demons “I will kill another f* “Nobody *er threatens * * understands the s* I’ve done and I’m of. I can’t talk it.” capable even about prosecutor three his quoted Thompson’s during open- statements 109} {¶ argument ing through testimony. and introduced them Bartz’s Bartz identified in the saw Thompson sitting courtroom testified that he with a female Rav’s Bar after p.m. July According sometime 11:30 on to Bartz, Thompson was drunk” “pretty slamming glass and was his on the bar. Bartz recalled overhearing Thompson making some statements that made Bartz statement, bit angry.” “a little Bartz then referred to prior given his own written murder, police day or two after the relate three statements to jury. Outside the of the court presence jury, the trial invited defense counsel statements, “objection just “elaborate” to the three record.” argued The defense were general- specifi- because statements —and ** * cally killing police they “much more than prejudicial were officer— probative.” The trial then judge explained that she had excluded “the statements more appeared slightly racially be order to charged” kind “avoid[ ] sense horror or to an appealing punish.” instinct to The court found “relevant, other three statements were and not probative unduly prejudicial.” “A trial court enjoys broad discretion in admitting Long, evidence.” 111}
{¶
Ohio
reject
St.2d
because the statements
to decide
encouraged
thereby
dangerous person”
angry, generally
Thompson’s
fear,
assuming
But even
the basis
not reason.
the case on
of
reasonable,
the trial
he cannot
show
characterization of
statements
Blakemore, 5
unreasonable, arbitrary,
or unconscionable.
balancing
court’s
result,
defer
the trial court’s
1140. As a
we
to
N.E.2d
Ohio St.3d
under Evid.R. 403.
that the statements were admissible
finding
Second,
as
character
objects
improper
to these statements
404(A)(1).
“Evi-
This
evidence,
provides:
of Evid.R.
rule
admitted
violation
for the
* *
a trait
character is
admissible
of a
character or
person’s
dence
conformity
particular
on a
occasion
action in
therewith
purpose
proving
trial,
objection
we
claim for
this
review his
Because
did not raise
118,
{¶ him as an as impermissibly portray angry person, order to this evidence violence, as disliked with a or even someone who general proclivity someone Instead, night law this evidence of statements on enforcement. intent killed Miktarian a few hours probative crime was of his when he Therefore, did not violate Evid.R. later. evidence Moreover, if the admission of these three statements had been even 117} {¶ trial. cannot show that affected the outcome of his improper, Thompson they a law- supported murdering conviction for Ample purposely evidence officer the associated death specifications. enforcement reasons, law No. reject For these proposition VII. Unqualified Experts
E. IX, law No. that the trial court Thompson argues, proposition of 119} {¶ expert constitutional rights permitting unqualified violated Evid.R. and his testify him. See Amendment to the U.S. against witnesses Fourteenth Constitution; Constitution, I, Article 16. He also claims Ohio Sections of all “duty relevancy reliability trial court its breached assess evidence at trial.” scientific introduced three testify as an when may expert Pursuant Evid.R. witness First, must testimony relate}]
criteria are satisfied. the witness’s “either by lay dispel[ or beyond knowledge experience possessed persons ] matters *20 702(A). Second, the EvicLR. lay a misconception among persons.” common skill, experi expert specialized knowledge, an “qualified by must be as witness testimony.” subject matter of ence, or training, regarding education 702(B). of a or knowledge field complete A either witness does need Evid.R. Baston, 85 Ohio expert. an State v. qualify or as special education certification testimony must be Finally, the witness’s St.3d N.E.2d technical, Evid.R. scientific, specialized information.” on reliable or other “based 702(C). subject evidentiary to other addition, remains expert testimony all rules. expert-testimony his Because failed raise of current at trial, error Baston plain only. review his claim for
objections Saraya 1. John plain Saraya error occurred when John According Thompson, 122} {¶ analysis qualified expert blood-spatter because he was not as an testified lacked scientific basis. testimony requisite his trial, special At as a Saraya agent identified himself Ohio (“BCI”) 12 years of Investigation Bureau of Criminal Identification and his training, in the unit. testified that as experience Saraya part crime-scene history spatter a 40-hour blood school.” He summarized the “attended] he blood-spatter analysis Saraya regarding for the then testified jury. science found on shoes and analysis spatter Thompson’s blood had been away. that the from a no than one foot opined stains had come blood source more shoes when the parallel The blood source had been front and almost to the spattered. shoes were First, to this multiple objections says raises evidence. allowing testify trial court the state Saraya
that the
erred
because
never
formally
expert
formally qualified
tendered him as an
the court never
him as
an
We
found that no
error occurs when the state
expert.
repeatedly
plain
have
See,
Hartman,
formally
fails to
an
93 Ohio St.3d
expert.
e.g.,
tender
State
(2001); Baston,
422-423,
285-288,
expert. “Under an which will assist the experience, training, give opinion or education Beuke, a fact at issue.” v. 38 Ohio understand the evidence and determine State (1988). Here, 29, 43, completed 274 that he had Saraya 526 N.E.2d testified St.3d on and had been a member of BCI’s crime-scene spatter 40-hour course blood blood-spatter analysis 12 to his years. experience unit for He also referred in other investigations. Saraya’s inadequate were Thompson says knowledge experience in testified. But a “witness
compared
blood-spatter experts
to other cases which
subject”
expert.
not be
on the
to be
as an
Scott v.
qualified
need
the best witness
(1994).
Yates,
221,
Instead,
simply
Ohio St.3d
violated his him rights against confront the witnesses and to present defense. complete See Sixth Fourteenth Amendments to the U.S. Constitu- tion. that his rights reasons Sixth Amendment were violated because a criminal defendant cannot “confront a scientifically possibility.” unreliable We rejected reject a similar argument Lang 83 and likewise argument now. did Thompson’s attorney Saraya, cross-examine the defense opportunity contrary had the to introduce scientific evidence. Sixth, Thompson argues Saraya’s blood-spatter evidence was 402, or, not if
either relevant and thus inadmissible under Evid.R. 401 and even 403(A). no offers relevant, under Evid.R. unfairly prejudicial was contrary, this To the was not relevant. testimony that this for his claim support in the Miktarian shot it indicated relevant because evidence was on the foot, lying Miktarian was than one while of no more from a distance head was that Miktarian coroner’s statement This evidence corroborated ground. twice three feet and head, of two or twice from a distance in the shot four times properly trial court Accordingly, his skin. touching gun when the Evid.R. 401 and testimony under Saraya’s admitted testimony Saraya’s failing to exclude trial court also did err “is not admissi- that relevant evidence provides Evid.R. 403 under Evid.R. 403. of unfair danger substantially outweighed if its value is probative ble his courtroom Here, Saraya’s testimony, asserts prejudice.” *22 in testimony closing of that reenactment, “exploitation prosecutor’s and the testimony how that was explain But he does not were argument” prejudicial. the outweighed unfair why danger prejudice of unfairly prejudicial trial court did not err testimony. Accordingly, the value of the probative err. plainly Evid.R. let alone this evidence under admitting merit, we objections above had even if of Finally, {¶ 133} (the that Miktarian’s head blood Saraya no error. indicated plain would still find source) when away than one foot from shoes no more probably that Miktarian was But the coroner also testified spatter the blood was created. feet, three and twice with at from a distance of two or range shot close —twice And, testimony, Sergeant Gina Saraya’s skin. consistent with gun touching his when the lying ground that Miktarian was on probably McFarren testified the one shot in the head and then final shots were fired because “he had three witness, Likewise, Danielle Thompson’s own three shots in the side of the head.” the last shots were Roberson, ground that the officer was on the when testified Thus, Saraya’s testimony necessarily affected cannot show fired. outcome. Analysts BCI Other by allowing court erred plainly that the trial argues also {¶ 134} objects that the Specifically, he analysts testify experts. as four other BCI trial court experts as formally tender these witnesses state failed to qualifications. of their failed to make a threshold determination matter, the trial court’s decision supports initial the record As an in their fields. experts respective these witnesses as treat (cid:127) about his formal who testified Dale Laux is a forensic scientist {¶ 136} at He has experience BCI. education, training, years and his 30 specialized his case, Laux In this in more than 300 Ohio cases. serology expert testified as on the items of blood findings regarding presence his primarily testified in evidence. (cid:127) his training, who testified about is a forensic scientist Martin Lewis in trace-evidence BCI’s years experience his nine employment, and prior
his from sample in the taken gunshot that he found residue testified section. Lewis Thompson’s hands. (cid:127) education, in training her BCI about her formal Stacy Violi testified DNA, serology with BCI’s years experience and her ten
serology and more than 90 occasions. expert a DNA Violi has testified as DNA section. on the case, performed of the DNA tests she about the results she testified items evidence. (cid:127) education, training, formal Chappell testified about his Andrew has Chappell firearms section. years experience BCI’s eight
and his cases, and he testified about firearms expert a firearms 56 Ohio testified as residue in this case. gunshot the trial court failed to that no error occurred when plain We conclude testimony. at the outset of their formally experts four witnesses as
qualify these
testimony and the trial prejudice prosecutor that a risk of unfair arose because asserts *23 however, makes no experts; specific four witnesses out as court held these Further, weigh prejudice he makes no effort to the risk of prejudice. claims of result, a has not testimony. the value of this As against probative regard. established error this sum, challenged of the expert In we discern no error the admission that from these five
testimony. reject Thompson’s argument testimony We also it not scientific muster due-process rights pass witnesses violated his because did IX under Evid.R. 702. of law No. fails. Proposition Mitigation
F. about the Phase Statements VIII, In law that the trial court proposition Thompson argues No. jurors conclusively that there would be due-process rights by telling violated his that that “judge conveyed a second of the trial. He claims the phase “infringed presumption a conclusion” and of inno- guilt foregone upon was 2901.05(A). Constitution; Amendment to the U.S. R.C. cence.” See Fourteenth trial, for objection proposition not raise this so we review this Thompson did plain error. Judge’s The Trial Statements capital for process bifurcated Ohio’s initially trial described judge if were explained judge dire. The jurors during voir
trials to to death or to other him, sentenced he “could be against charges of the convicted * * * that the death “possibility In of the light imprisonment.” of life options circumstances, judge advised imposed,” be, could under certain penalty on the death jurors’ views prospective inquire would about she and counsel penalty. voir dire that these emphasized began, judge questioning Before that the defendant “impl[ied] in no way capital punishment
inquiries finding guilt “presuppose[d] charged” of the crime that is guilty there is a conviction judge explained, in this case.” The should be made “If a reasonable beyond crimes committed these that the defendant proving the State hearing, which we doubt, separate that there will be a possibility there is a then to make a upon will be called hearing, where the sentencing will call added.) sentencing.” (Emphasis regarding determination judge prospective the trial informed scheduling, regard With week, said, and then following begin that the trial would jurors phase “[If added.) (Emphasis on June 10th.” sentencing phase, begin will [it] there’s whether the inquired about phase, apparently the trial someone Midway through judge stated: jurors. response, applied to alternate same schedule raised, on the Alternates, you I think are question at this point, jurors You will remain jurors sequestration. same schedule as these a verdict. they go until to deliberate for I’m glad And you juror. remain as get phase,
If we to the second weekend, and God forbid back, three-day have a everyone is but we will be a break then you. will need And there anything happens, but we part will remain of the phase. you next And phase and the between phase. second phase get the second jury until we finish the — object. Thompson did Analysis *24 phases.” and R.C. guilt penalty trials into capital “Ohio bifurcates
{¶ 147} 2929.04(B) (C). a initially determines defendant’s 2929.03(D); jury and The R.C. one murder and least aggravated of jury If the convicts the defendant guilt. Otherwise, the phase. to the second the trial specification, proceeds death then never occurs. phase second judge if a trial tells a light system, unequivocally In of this bifurcated
{¶ 148} trial, due judge be a second of the the violates jury phase there will capital undermining in and the communicating guilt a belief the defendant’s process by Williams, 153, 169, 652 N.E.2d of innocence. State v. 73 Ohio St.3d presumption 2901.05(A). (1995); process by does not violate due judge see R.C. jury of there a that the would have return speaking “generally being possibility deleted.) on the verdict.” Id. phase depending (Emphasis for a second conclusive, not argues judge’s language that the here was context, judge’s the statements equivocal. disagree. We Considered “you a next will phase phase” “there will be break then between this the jury phase get until we finish the second to that part remain the the — In phase” imply Thompson’s guilt jury. second to the the sentence did statements, immediately get these the court stated: we to the preceding “If added.) you juror.” (Emphasis By using remain as a the word phase, second “if,” judge clearly may may indicated that the trial not reach the second phase; spoke regarding phase. she “never definitive terms” second Williams, Moreover, judge challenged at 169. as in the trial made the Williams about second of trial context of phase explaining statements schedule. on, early repeatedly emphasized Even also that the second judge
phase
only possibility,
certainty.
not a
took
to communicate that
pains
She
all
capital punishment
possibility
phase
discussions of
and the
second
were
convey anything
not intended to
And at the conclusion
guilt.
“If,
jurors,
of the trial
phase,
judge
during
admonished
the course of the
trial, I
you
have said or done
which
consider to be an indication of
anything
my
subjects, you
disregard
presume
view on these
are instructed to
it.” We
that the
Pang
jury
judge’s
Minch,
186, 195,
followed
instruction. See
(1990).
process by reject implying Thompson’s guilt, proposition of law No. VIII. Voluntary-Manslaughter
G.
Instruction
XII,
of law No.
trial court
proposition
Thompson contends
erred
for a
denying
request
jury
voluntary manslaughter.
instruction on
According
Thompson,
give
the court’s refusal to
this instruction violated his
Alabama,
Eighth
rights.
Fourteenth Amendment
See Beck v.
447 U.S.
(1980).
643-644,
a trial judge’s
S.Ct.
L.Ed.2d 392
We review
give
decision not to
instruction for an
abuse
discretion. See State v.
Wolons,
44 Ohio
(A)
or in a
passion
of sudden
No
while under the influence
person,
brought
by
provocation
on
serious
rage,
sudden fit of
either which
person
sufficient to incite the
reasonably
occasioned
the victim that is
by
* *
force,
another
*.
cause the death of
using deadly
knowingly
into
shall
subjective
and a
objective
includes both
voluntary manslaughter
The test for
whether a
objective factor—a fact-finder must determine
component. First —the
was “sufficient
provocation
provocation
serious
occurred and whether
or
of his
her
passions
ordinary person beyond
power
arouse the
of an
(1992).
Shane,
630, 635,
{¶
First,
from his own
voluntary-manslaughter
quotes
length
instruction here.
mitiga
until the
give
unsworn statement. But
did not
his statement
trial court should
phase.
bearing
tion
This information has no
on whether the
trial.
State v.
given
phase
have
an instruction at the trial
See
Braden,
Roberson, that Miktarian “rude” and being “unprofessional.” who testified was Roberson, hood” of [Thompson] he “kind of slammed down on the According car ass.” At some dog [Thompson’s] and threatened “let out police [his] ended on the Roberson said that she “feared for point, Thompson up ground. later told her that he had shot Miktarian [Thompson’s] life” and to hurt him.” trying because Miktarian “was from the state’s Finally, Thompson variety cites a of other evidence Miktarian Roberson’s account. Witnesses testified that support
case-in-chief it) that his duty (though had removed his Taser from his belt he had not used blood) (though trigger DNA not his was found on the handle and acting very aggressively that Miktarian’s gun. dog Detective Kline testified scene, fact, that the officers did not police aggressively, when arrived at the so Norman, who instructed immediately let him out of the cruiser. And Luther law, that he students that concealed-carry on Ohio’s testified teaches enough each have to make a decision about when there is serious they personal justify discharging weapon. harm to bodily of death or serious possibility give by declining its discretion acted within The trial court all the Almost of this evidence. on the basis instruction voluntary-manslaughter him. would harm that Miktarian to his fear speaks by Thompson cited evidence kind of emotional held, insufficient to demonstrate alone is As we have “[f]ear Mack, fit of rage.” State passion sudden necessary to constitute state *26 Harris, 129 Ohio (1998); also State v. 198, 201, 1328 see 694 N.E.2d Ohio St.3d * * * (“evidence (10th Dist.1998) that 527, 535, 488 718 N.E.2d App.3d constitute does not safety, personal his own and other’s feared for defendant voluntary manslaughter by the rage contemplated a fit of as or passion sudden statute”). “unprofes- and being was “rude” testimony that Miktarian Roberson’s 158}
{¶
fit
rage.
or a
passion
to establish a sudden
is not sufficient
sional” likewise
sufficient
reasonably
constitute
that “words alone will not
court has held
This
201,
Mack at
force in most situations.”
deadly
to incite the use of
provocation
630,
272,
syllabus.
two of the
Shane,
paragraph
590
63 Ohio St.3d
N.E.2d
citing
“rudeness”
reported
that Miktarian’s
Here,
reasonably
trial court
concluded
power
of his
ordinary person beyond
of an
passions
not arouse the
would
of fear. See Shane at 635.
control,
when
with evidence
coupled
even
Moreover,
Thompson actually
nothing
the record indicates
Roberson, Thompson’s only
night
question.
in fit
or
on the
passion
rage
told her
witness,
and then
testified
shooting
simply
described the
sister’s house. Her
in the car so the two could drive
get
back
or level of
actual state of mind
insight
no
into
testimony provides
circumstances, the court did
these
shooting.
at the time of the
Under
agitation
voluntary-manslaughter
instruction.
by refusing
give
not err
XII.
reject
of law No.
proposition
We therefore
160}
{¶
Misconduct
H. Prosecutorial
XI,
prosecutorial
of law No.
claims
proposition
161}
{¶
him of due
thereby depriving
throughout
proceedings,
misconduct occurred
to the U.S.
a fair trial.
Sixth and Fourteenth Amendments
See
process
Constitution;
Constitution,
I,
10
Article Sections
Ohio
misconduct,
“must deter
allegations
prosecutorial
To evaluate
(2)
so,
(1)
if whether it
improper
conduct was
prosecutor’s
mine whether the
LaMar,
v.
rights.”
substantial
State
prejudicially
defendant’s]
affected [the
¶
1. Voir Dire
engaged
by
in misconduct
Thompson argues
prosecutor
jurors an
of the
giving
misleading definition
repeatedly
prospective
improper
“mitigating
during
objects
voir dire.
to statements
Specifically,
term
factors”
juror
dire of
Nos.
prosecutor during
prospective
made
individual voir
object
trial,
we review his
and 16.
did not
either statement
so
Franklin,
97 Ohio
prosecutorial
plain
only.
claim of
misconduct
error
State v.
1,
{¶ testimony and leading questions speculative witnesses and elicited improper hearsay. Questions Leading
a. the Thompson says prosecutor leading questions during the asked 165} {¶ Jira, Franco, other testimony eight of John witnesses. Christine to review these object questions most of these at trial. Accordingly, did error, plain claims for unless otherwise noted. “A is ‘one to the the answer leading question suggests that witness ” Drummond, 14, by the State v. Ohio 2006-Ohio-
desired examiner.’ St.3d ¶ 138, McCormick, Evidence, N.E.2d at 19 quoting Section Ed.1999). (5th type question “should not on the direct Generally, be used necessary of a as to the witness except may develop examination witness be 611(C). Still, leading the court has to allow testimony.” Evid.R. trial discretion D’Ambrosio, 190, 616 on direct examination. 67 Ohio St.3d at N.E.2d questions 611(C). 909; see Staff Note to Evid.R. First, that led bartender prosecutor improperly claims the During him about behavior questioning Thompson’s July
John Jira while on (Bartz) that he that a had testimony, Jira confirmed was aware witness that The Thompson making night. prosecutor overheard statements in the bar asked, statements, him you?” “You hear those did Jira then didn’t make “Not at all.” responded, trial court had leading, was Although prosecutor’s question it was to improper, if the had been question to it. And even permit
discretion
answer showed that Jira was unable
question
benefit. This
According-
testimony
night.
about
behavior
corroborate Bartz’s
testimony.
regard
error with
Jira’s
ly,
plain
we find no misconduct
Second,
objects
prosecutor’s
to the
redirect examination
cross-examination,
Franco.
Franco had testified
dispatcher Christine
On
police
Miktarian
of his
night
that she did not receive a “distress code” from
codes,”
agreed
use
and she
explained,
usually
murder. She
“We don’t
“I’m
normally say something
counsel that an officer in trouble would
like
defense
trouble, or, I
help.”
need
redirect,
in an
prosecution
leading questions
attempt
asked
On
may
request-
have been
distress when he
communicating
establish
Miktarian
sidebar,
objection
unit.
trial court
ed another
After
sustained
“an
questioning, reasoning
prosecutor
making
argument”
The
meaning.
prosecutor attempted
rephrase
question,
Miktarian’s
but
objection.
inartfully
the court sustained a second
At this
point,
prosecutor
asked Franco whether she had known Miktarian’s reasons for requesting backup
when she testified on cross-examination that Miktarian had not called in distress:
when you
question, you
“So
answered
didn’t know that
[defense counsel’s]
agreed
either?” Franco
she had not known Miktarian’s reasons.
objections
questions
court sustained
to the first two
cited
Hale,
Thompson,
they
so
cannot be the basis for a misconduct claim. See
118,
{¶ 172} by leading many misconduct He “us[ing] questions eight witnesses.” cites witnesses and corresponding transcript pages argument but offers no further of claim. support Many Thompson’s this citations refer to instances which objections the trial court a question, sustained to which cannot be the basis for a addition, misconduct claim. some of the cited questions merely restated prior testimony, they witness’s so cannot be deemed prejudicial. claim Thompson’s leading questions What remains broad are bar,
whether certain behavior is unusual in a whether Miktarian’s dashboard force, deadly camera was whether a Taser is whether recording, Thompson (or thereof) home, significance finding resisted arrest at his sister’s lack no case, in a analyst’s past experiences swabbing guns forensic evidence and BCI a Taser prejudicial potentially one of these matters is Only for blood. —whether self-defense, rely cannot and he argue did not deadly Thompson force. But prejudi- was not testimony even that manslaughter. Accordingly, prove fear to reject all of cial, We therefore let alone outcome-determinative. leading questions. to the use of
claims related Hearsay Eliciting
b. by committed misconduct Next, prosecution that the Thompson argues Bartz, violating Thompson’s testimony thereby from eliciting hearsay Steven trial, this evidence at object did not to Because rights. confrontation Jones, at 744 N.E.2d 91 Ohio St.3d plain has waived all but error. See 1163. both on testifying, on his written statement when police Bartz relied Bartz did read some record indicates that and on cross-examination. The
direct
hearsay
But
admission of
did
jury.
aloud to the
this
of his statement
portions
(Bartz)
at
testified
because the declarant
rights,
violate
confrontation
¶ 64;
Powell,
233,
posing
“Sir,
redirect,
Sandoval,
how
seconds does it take
many
asked
prosecutor
on cross-examination of
for a
shoot and kill a
officer?” And
gun
police
reach
asked,
in the world to be
Roberson,
every
“That officer had
reason
prosecutor
nervous,
instances,
objec-
trial court sustained defense
didn’t he?” In both
jury
“[disregard
question.”
tions and instructed the
the trial court sus-
objections
“cannot
error on
predicate
Hale,
sets an scene, wearing Miktarian Bagio of Miktarian and show photos were admitted According Thompson, the former pin. “Officer of the Year” latter were inference and the encourage improper draw only *29 only sympathy. admitted to evoke testimony the of photos during the first set of The state introduced
{¶ 179} Office. McFarren, County in the Summit Sheriffs sergeant a retired Gina At July 2008. at the crime scene evidence Glenwood McFarren collected that was found near the of a bottle trial, liquor three broken photos she identified object. not scene. The defense did prosecutor error occurred when the plain cannot show that Thompson admitted, generally Evid.R. 402
offered,
photos.
trial court
these
and the
are relevant
photos
admissible. These
that all relevant evidence is
establishes
* * *
who
testimony
police
processed
of
officers
they “helped explain the
because
outweighed his, that the bottle was even infer jury improperly these allowed the photos judge that inference. But the trial reason- supported no other evidence though presence to draw its own conclusions about bottle’s ably permitted a that was not And defense counsel did make case bottle the scene. cross-examination, that the was next McFarren admitted bottle Thompson’s. On when, sidewalk, it way knowing put that she had no who there to the intersection, busy driving by and that someone could Thompson’s home near cannot establish Accordingly, Thompson have thrown the bottle from a vehicle. by introducing these or that prosecutor improperly photos either that the acted their admission. unfairly prejudiced by he was Bagio during introduced of Miktarian and photographs The state witness, Twinsburg Christopher Noga.
direct examination of its first
Police Chief
object,
photos
probative
but now
that these
lacked
argues
The defense did
sympathy
jurors.”
“had no basis other than to invoke
they
value because
has
held that
are relevant and
previously
“[p]re-death photographs
This court
LaMar,
purposes
identifying
victim[ ].”
admissible
5. Trial-Phase prosecutor next contends committed misconduct trial-phase “wholly improper” several during closing arguments making trial, and his a fair rights process, to due that “violated statements silent.” to remain right shifted burden First, improperly that the state says Brian closing, Prosecutor the state’s rebuttal During the defense.
proof to would be: what defense anticipate recounted his efforts LoPrinzi *31 I what thought, okay, all through I the defenses going So started we have? of defenses do types * * * insanity. It is not not insanity. They’re pleading
haveWe issue. guy. You got wrong are there? It wasn’t me. other defenses
What and told Well, they’ve up on the gotten we know that’s not table because of him, DNA. We have all kinds it was not to mention we have you that. contrary evidence burden? prove
State failed to its Gentlemen, basically that’s The Defense not the defense. Ladies They’ve that. That’s not a defense. you you told that he did this. told has you has now discussed little bit counsel] Mr. O’Brien [defense * * * It is not an You cannot using that in self-defense. issue. gun consider self-defense. what is defense?
So their subtle, It it Mr. O’Brien their was but just You heard from defense. officer was pervasive. rude. here, here, a half of being being after two two and weeks So weeks evidence, evi- on mounds and mounds and mounds scientific putting evidence, dence, witnesses, are here eyewitnesses, overwhelming audio It’s absurd. talking now about the bedside manner of Officer Miktarian. It is absurd. object. not did had defendant prosecutor suggest It is for the “improper produce prove evidence to his innocence.” proof any obligation or
the burden Cir.1993). (6th Clark, claims F.2d 968-969 United States may implied here somehow that the statements have prosecutor’s provide defense. needed they did improper, statements were assuming prosecutor’s Even state- rights. closing substantial its first prejudicially affect
ment, proving that the state bore the burden prosecution clearly stated doubt, legal had “no beyond argued a reasonable then guilt judge the trial instructed justifiable important, excuse for his crimes.” More guilt innocent until his is established jury presumed defendant “[t]he unless the State beyond acquitted a reasonable doubt. The defendant must be every doubt of you beyond evidence which convinces reasonable produces indictment.” charged essential element of each of the offenses We Loza, 71 that the the court’s instructions. State v. Ohio presume followed Therefore, challenged statements did St.3d not amount to plain error. Second, Thompson says prosecution improperly denigrated that the (1) (2) “absurd,”
defense in the defense as ways: by describing theory three it’s suggesting testimony away the defense wanted to take Bartz’s “because (3) offensive,” very by asking, you “How much more do think the Defense is willing you guilty.” to deceive to find out—find the defendant not The first and *32 extreme, Although second statements do not merit concern. the term “absurd” is is nothing improper arguing theory there that the defense is not well- founded. Nor it improper suggest preferred was to that the defense would have if certain had not at trial. evidence been introduced statement, however, prosecution’s troubling. The third is more We
{¶ 194} have held that the may “unfairly suggest} state not that the defense’s case was ] LaMar, 181, untruthful not honestly presented.” 95 Ohio St.3d 2002-Ohio- ¶ 166, Here, prosecutor N.E.2d at that because implied Thompson July lied Miktarian about whether he had consumed alcohol on jury should question lying whether the defense was to secure so, This was acquittal. improper. Thompson object Even did not to the trial, at statement and he cannot show that but for this comment the outcome of Therefore, trial his would have been different. he cannot on establish error this basis. Third, Thompson objects prosecutor’s commentary to the about Count indictment, if tampering prosecutor with evidence. The commented that Miktarian,
Miktarian’s not would engraved by Thompson handcuffs had been probably they belonged improper. claim to him. This comment was It does not error, however, beyond amount to because “it clear a reasonable plain appears jury guilty doubt that the would have found the defendant this even [of count] ¶ without the LaMar at 121. improper ].” comment} Fourth, prosecutor improperly expressed claims that the Thompson
opinion credibility. prosecutor about Danielle Roberson’s The observed Thompson after fled happened of what conflicting accounts Roberson had offered And things. you you quite “Danielle told few then commented: the scene. He upon have her may put this defendant for whatever motivations have to feel bad The court everything happened.” not tell you in here and come later, commented, objection. prosecutor A moments few overruled a defense truths to of liars tells 100 one greatest once said that even the “Abraham Lincoln Danielle, at all. she twisted lie, otherwise, credibility And they’d have no because * * * lies, times, Finally, the truth comes out.” in those some but even things, change for “and her testify argued willing that Roberson happened.” account of what matter, attorney express for an his or improper general “[i]t As credibility a witness.” State v. opinion as to the personal
her belief . (1997) Here, did Williams, prosecutor N.E.2d 646 own inconsistencies testimony suggest gaps not Roberson’s merely —or telling story. that she was the whole statements —indicated not prior her No to lie. evidence pressured He had Roberson suggested also claim, it for the improper prosecutor this and was supported on record make comment. that this error his substan prejudiced But cannot establish commented Roberson’s account of
tial
rights.
prosecutor improperly
house,
already
had
killed
what
sister’s
happened
after
error,
improper
plain
the crime scene. The
comment was
Miktarian and fled
beyond
doubt that the
would have
appears
because “it
clear
reasonable
LaMar,
guilty
improper
found
even without the
comments.”
the defendant
181,
{¶200}
Davis,
in issue.”
places
personal credibility
record or
his or her
outside the
¶
That was the real Ashford
two
you
past
in front of
for the
man
in a suit here
put
not the
13th
eyes.
rolls his
makes his smiles and
weeks who
May
phone
in that
apparent
is
of Ashford
anger
call.
phone
that 2009
apparent
that he
others is
gives
call. The blame
that
That is the Ashford
Thompson.
That is the real Ashford
That is the man that
morning.
encountered that
Joshua Miktarian
Officer
is
say
Bartz heard
there
puzzle
of the
comes from
Steven
piece
under-
Nobody
I
kill
MF’r that threatens me.
demons in me. will
* *
That
man
capable
and I’m
of.
is the
through
stands the s*
I’ve been
you
obsessing
is the same man
heard
you
judge
today.
we ask
here
He
* * *
in that
call
phone
yesterday.
Danielle
controlling
and killed Officer
gunned
That
man that
in cold blood
down
is the
Miktarian,
us.
doing
duty
who was
to serve
Joshua
that the
is entitled to
certain
prosecution
have
held
“previously
We
Treesh,
entirety
prejudicial
to determine whether
during closing argu
statements
although
prosecutor
improper
made some
deny
so as to
ments,
argument”
the state’s
permeate
these statements “did
prejudicial,
trial.
And even if these comments had been
Thompson fair
Id.
See, e.g.,
our
sentence evaluation.
during
independent
could cure that error
272,
{¶ closing during mitigation-phase jury’s sympathy to the and emotions by appealing arguments. aggravating discussed the argument, prosecutor the During closing 205}
{¶
that “this case
emphasized
officer. He
killing
circumstance of
a law-enforcement
“what he
He discussed
represented.”
Miktarian” but about
is not about Officer
family,
whole
Thompson “by letting
had honored
mitigation hearing
how the
him.”
for,
things
wonderful
about
friends,
say
that he worked
come and
people
the Defendant and start
jury,
stop honoring
told the
“now it’s time to
Then he
weighing
jury
asked the
to “do
honest
honoring
prosecutor
the law.” The
advised,
mitigating
the
factors.” He
aggravating
against
circumstances
or
you going
Thompson,
Are
to honor Mr.
weight.
now have to decide
“[Y]ou
law,
you give
weight?”
do
more
you going
badge?
are
to honor the
Which
improper.
prosecutor
were not
The
prosecutor’s
The
statements
206}
{¶
circumstances and
correctly explained
process
weighing aggravating
circumstance at issue
jury.
aggravating
factors to the
As to the
mitigating
jury to
prosecutor
a law-enforcement officer—the
advised the
killing
here—
law.”
representative
By
the victim’s
and his role as a
of “the
“badge”
consider
contrast,
Thompson’s mitigation
during
referred to all of
evidence
prosecutor
Thus,
“honor[ing]
prosecutor
as evidence
him.”
when the
mitigation phase
law,”
Thompson”
whether to honor “Mr.
or “the
jury
asked the
decide
2929.04.
weighing required by
asked for
more than the
R.C.
essentially
nothing
Further,
if
had somehow misled the
prosecutor’s
even
comment
Thompson cannot establish
jury
weighing process,
the nature of the
jury,
presume
instructed the
and we
that the
prejudice.
judge properly
The
Loza,
those instructions.
to make the
(1986),
168, 181,
Donnelly
{¶ 209} Errors I.Trial Court variety X that a of errors in of law No. proposition asserts Thompson {¶ 210} and a fair trial. process to due rights the trial court violated and omissions As Fourteenth Amendments to the U.S. Constitution. Sixth and * * * of a fair notes, for the conduct responsibility has the ultimate judge “the 1091, 333, 341-342, 98 S.Ct. Oregon, trial.” Lakeside v. 435 U.S. and lawful L.Ed.2d 319
1. Dire Voir to correct by failing trial court erred argues that dire. of circumstances at voir mitigating counsel’s definitions voir during claim turns on statements made individual {¶212} 7, described juror prosecution No. During prospective dire. voir dire consider,” and you wants to hear and “any good as that the defendant mitigation * * * Mr. life.” The “good things it as about the defense described No. 16 as “factors that the mitigation prospective juror also state described anything on—and that could be tends put may put Defense can on or culpability.” or his severity lessen the the case claim, prospective on this because neither prevail cannot juror as a or even as
juror alleged who heard these misstatements seated alternate.
2.Batson excluded an improperly that the trial court Thompson also contends Batson, 79, 476 U.S. 106 S.Ct. juror African-American violation prospective in our 1712, reject explained this claim for the reasons 90 L.Ed.2d We second of law. analysis Thompson’s proposition Testimony,
3.Improper Questioning, and Evidence Next, rights trial court violated his to due Thompson says to commit the misconduct by permitting prosecution a fair trial process court should have Thompson says of law No. XI. alleged proposition witnesses, hearsay testimony, introducing leading eliciting the state from stopped evidence, inflammatory making improper improper prejudicial above, the alleged But as discussed during closing statements statements. Therefore, failure the trial court’s Thompson’s rights. not violate misconduct did a fair process of due deprive likewise did stop this conduct trial. Inspection of Records have ensured trial court should that the argues Finally, Thompson records. personnel to review Miktarian’s present
he was motion to review a defense granted the court February On concern expressed the prosecutor March file. On personnel Miktarian’s the parts “I don’t explained, [want] file and information confidential *36 to the defendant.” or released or reviewed to be discussed that are not relevant would set and said that she the file produce judge prosecutor ordered The counsel and defense prosecutor of it with the through page each go a time to up appropriate. thought of whatever she copy counsel a give would defense before preliminary a review parties do suggested Defense counsel will not noting, Thompson “And Mr. judge agreed, judge. with the meeting later, Thompson confirmed that judge discovery.” Moments present be no The defense raised questions. not have going what was on and did understood objections. to the entire unredacted'file. received access Defense counsel later 218}
{¶ record, noted, gave we “For the prosecutor During sentencing hearing, records, attorneys His had completely unredacted. the officer’s Thompson Mr. Thomp- whether record does not indicate to look at them.” The opportunity himself reviewed the materials. son his ensuring trial court erred now claims that the A trial court must ensure of Miktarian’s file. for the review
personal presence Williams, 6 see State v. stages prosecution, at critical presence defendant’s (1983), authority cites no 281, 286-287, 1323 but 452 N.E.2d Ohio St.3d fact, In in the few cases discovery to the context. extending obligation materials, discovery all “most right of access to which defendants have claimed to provide [the defendant] counsel’s decision whether courts have held that ‘[t]rial judgment strategy constitutes a matter of discovery materials ” 294, 300 Krueger, v. 296 P.3d People counsel’s discretion.’ ultimately lies within lack of access to whether defendant’s (cataloging analyze cases to (Colo.App.2012) counsel), quoting him and trial created a conflict between discovery materials Davison, 981, 227 1236 Ill.Dec. People Ill.App.3d v. could discovery materials a defendant unfettered access “[Allowing make him attorney” and would the defendant and his create friction between decisions, or no with little attorney’s strategic likely question “more relationship.” Krueger undermining attorney-client justification, thereby regard. cannot establish error Thomp- not outcome-determinative: addition, error was alleged In 220} {¶ whether file, able to assess they were to Miktarian’s counsel had access son’s defense. helpful Thompson’s it included information law No. X. reasons, reject proposition we For the above Assistance of Counsel Ineffective J. XIV, argues XIII and of law Nos. proposition and Four- See Sixth constitutionally ineffective assistance. provided
counsel Constitution, Constitution; Article to the U.S. Ohio teenth Amendments Section (1) assistance, must both show that a defendant To establish ineffective reasonableness,” as objective below an standard performance
counsel’s “fell norms,” Washington, Strickland by “prevailing professional determined (2) (1984), “a demonstrate 80 L.Ed.2d U.S. S.Ct. errors, the result of that, for counsel’s unprofessional but probability reasonable different,” performing at 694. When have been id. would proceeding falls that counsel’s conduct strong presumption analysis, “indulge Strickland Id. at 689. professional reasonable assistance.” range within the wide 1. Pretrial and Trial Claims *37 Dire
a. Voir during provided performance that counsel deficient Thompson argues {¶ 224} in regards. voir dire several dire, have at voir claims of ineffective assistance evaluating When any to determine whether position that is in the best
“recognized
counsel
91
Murphy,
State v.
and to what extent.”
juror
questioned
should be
potential
Mundt,
516,
(2001);
v.
115 Ohio St.3d
539,
765
see State
747 N.E.2d
Ohio St.3d
¶
(in
cases,
reticence 298 they they impose could a death
Nos. 11 and 66 said did believe juror they 69 said there was little chance Prospective sentence. Nos. 48 and Prospective juror a a death sentence. No. 102 said sign imposing could verdict And objections penalty. prospective she could not set aside her to the death to his juror morally opposed penalty No. 95 said he was to the death due Seventh-Day convictions as a Adventist. says objected defense counsel should have either to the jurors attempted of all six of those to rehabilitate them. prospective
dismissal
jurors
But
to rehabilitate
does not render trial counsel ineffective.”
“fail[ing]
479, 489, 721
Trial “counsel
Lindsey,
State v.
87 Ohio St.3d
N.E.2d 995
rehabilitated,”
jurors
position
the best
to determine whether the
could be
[are]
¶
Davis,
404,
alleged way jurors error. There is no to “know whether these could have been sic.) (Emphasis rehabilitated.” Id. Nor is there “evidence the record that jurors the seated were unable to follow their a oaths and to make recommenda- tion only permitted by of death when law and warranted Lindsey facts.” at 490. Second, Thompson argues defense counsel should have asked the or, least, life-qualify prospective jurors court to at the it very upon taken Illinois, 719, 729-734,
themselves to do so.
v.
Morgan
504 U.S.
S.Ct.
(1992),
willing to consider
other than a
of a
if
options
Thompson
sentence
death
were
(or,
instances,
convicted. Defense counsel
in a few
prosecutor)
discussed the
state’s burden of
at
with
proof
sentencing
every prospective juror who was seated
a juror
juror
as
or alternate and verified that each
mitigating
would take
evidence
into
if
account. And even
believes that his
Thompson
counsel should have
questioned
prospective jurors
further on this
we must
point,
presume
inquire
counsel’s decision not to
further was a matter of trial strategy. See
Strickland,
689,
2052,
466
atU.S.
104 S.Ct.
299
Moreover,
Thomp-
in life-qualifying
if
had been deficient
even
counsel
231}
{¶
jurors
cannot
None of the seated
jurors, Thompson
prejudice.
son’s
establish
death if
automatically impose
or she would
during
indicated
voir dire
Maxwell,
12,
v.
139
St.3d
2014-Ohio-
were convicted. See State
Ohio
¶
jurors began, about race. Before voir dire defense adequately with jurors “any problems trial court to whether the have had inquire prospective being that would them from prevent a member of the African-American race” dire, every trial impartial. During question fair and voir court asked this none of their ultimately jury, responses who was seated on the person objects that trial counsel should have indicated racial bias. now inquiry conducted on the matter. further murder, is accused of interracial defense capital When defendant engage inquiry,” they required
counsel are “entitled to
racial-bias
but
are
deleted.) Hale,
118,
Accordingly,
no
because
prejudice,
addition,
cannot establish
In
matter.
on this
guilty plea.
withdrawn
about his
juror knew
any
seated
indicates
evidence
ineffective assistance
provided
counsel
Finally, Thompson argues
voir dire. As noted
during
factors”
“mitigating
the term
incorrectly defining
by
trial counsel described
juror,
prospective
dire of one
above,
individual voir
during
* * *
and “any
life”
about Mr.
“good things
factors as
mitigating
prospective
But that
and consider.”
you
wants
hear
that the defendant
good
hardly proves
juror,
and this evidence
was not seated as
juror
factors as
mitigating
described”
“repeatedly
that defense counsel
sweeping claim
by relying on
event,
deficiently
not perform
In
counsel does
any
“good things.”
Lang, 129
during voir dire. See
legal concepts
to complex
references
shorthand
¶
512,
ineffective
adequate,”
as
pretrial publicity
“voir dire about
venue in cases where
¶
49;
Davis,
404,
change largely venue rests *40 VI, ¶ law No. of analysis proposition in the explained 229. For the reasons result, As a of venue. declining change err to order trial court did not regard. did not ineffective assistance provide hold that counsel Preparations Inadequate Trial c. constitutionally inade- that trial counsel were next claims Thompson
{¶ 241} key ways. for trial in several they prepare failed to quate because serologist hired a First, that counsel should have objects DNA was evidence that Miktarian’s to evaluate the state’s expert and a DNA that a mixture trial, evidence presented At the state Thompson’s gun. present analyst of the BCI trigger gun. on the handle and profiles present DNA each belonged on the swab taken of major profile that the Stacy Violi testified belonged Thompson. minor profile Miktarian and the Violi, “Well, cross-examination, asked how does defense counsel On that she responded Violi Thompson’s gun?” DNA end on Mr. up [Miktarian’s] bodily from some that Miktarian’s DNA had come did not know. She conceded had his hand on that it was that Miktarian had possible fluid other than blood and for say likely scenario, But that “the most Thompson’s gun. unwilling Violi was gun” gun” that Miktarian “had that or “touched that DNA transfer” was point. some testify an expert counsel should have hired Thompson says defense struggle of a gun
that “the
of the officer’s DNA on the
was indicative
presence
testimony is often tactical
expert
over the
The decision not to seek
weapon.”
“
inculpates
such an
uncover evidence
further
expert might
‘because
”
83599, 83842, and
Krzywkowski,
Cuyahoga
8th Dist.
Nos.
defendant.’
State
Glover,
failed to
or seek court
notes,
Strickland
investigations”
defense counsel “to make reasonable
requires
trial. 466
at
104 S.Ct.
tance by failing to listen to Roberson’s prior statement before she testified trial. Roberson was the only only defense witness and the witness who testified about the confrontation between Miktarian July on 2008. On cross-examination, the state questioned Roberson about the differences between testimony her and her statement to police July 13. While counsel and the trial court were discussing proper impeachment technique, it became clear that statement, defense counsel had not reviewed Roberson’s prior though even state had made it during discovery. available court during took break Roberson’s testimony to allow both Roberson counsel to hear the interview for the first time. Counsel should not have allowed a crucial testify defense witness to
without first reviewing so, her prior police, statement but even cannot prejudice demonstrate as a result of the error. that if Thompson says counsel had been familiar with statement, Roberson’s prior they could have better prepared Roberson to testify and the state would not have been able to undermine her But credibility. commented, one of Thompson’s attorneys after hearing statement, Roberson’s that “about 99 percent” prior of the statement accorded with Roberson’s in-court testimony on direct examination. And closing, he argued that Roberson should be trusted precisely because her *42 testimony was percent “about 98 the same” as her statement hours after the murder. Thompson also claims that error, but for
{¶ counsel’s he would have 251} been “able to convince the court give to a manslaughter instruction.” Thompson is wrong. Even if Roberson’s direct testimony gone had entirely unchallenged, it did not merit a voluntary-manslaughter instruction for the reasons explained analysis of proposition Thus, of law No. XII. Thompson fails the second prong Strickland. Thompson also argues that counsel
{¶ were ineffective they 252} because did not watch the videotape found in Miktarian’s cruiser on July says 13. He this was key evidence and counsel “shirked their duty to investigate” by failing to review it. matter, As an initial it is not clear from the record whether counsel reviewed the tape. But regardless, Thompson cannot demonstrate that he was prejudiced by the alleged omission. Twinsburg Police Chief Christopher Noga testified that to his knowledge, Miktarian’s dashboard camera had not been used in some time and the film recovered from July the camera on 13 was “old.” A second officer testified that Miktarian’s camera always breaking “was down.” was tape probable that “it is concedes testimony, even Given it unclear how counsel’s Accordingly, case.” to completely [his] unrelated Thompson. have prejudiced could tape failure to review alleged of law argument proposition of his part recasts Finally, Thompson defense Thompson, to According claim. X an ineffective-assistance No. as of Miktarian’s inspection during his presence have ensured counsel should however, no above, support offers explained As we records. personnel Further, he or even advisable. required, presence claim that his for his error, counsel had access because alleged on this prejudice establish based cannot contents. utility of its and were able to assess entire file to Miktarian’s Object d. Failure to assistance ineffective Next, provided that counsel Thompson argues misconduct, testimony, improper expert to failing object alleged prosecutorial to trial court errors. assis- a as ineffective argument claims recasts merits Each of these 2929.03(F) (error sentencing I in R.C. of law Nos. Proposition tance of counsel: misconduct), XIII testimony), XI expert (prosecutorial IX opinion), (improper (constitutional (comments narrowing). For and XVI mitigation phase), about the reject underlying the merits of these in this explained opinion, the reasons result, provide that counsel did not ineffective we conclude claims. As alleged to errors. by fading object assistance these Complete Present a Defense e. Failure to ineffective assistance because claims that he received says present He counsel needed complete defense. present counsel failed testimony than to demonstrate of more Roberson’s consisting an affirmative case (1) that counsel should have argues Specifically, or self-defense. provocation (3) (2) instruction, trial, testify requested a self-defense had affirmative evidence. presented more First, deficiently by having Thompson not perform counsel did testify, personal right” trial. have “a fundamental and
testify at Defendants Bey, an accused.” State v. Ohio St.3d only by which is “waivable testify requisite to establish the Thompson says he needed N.E.2d 484 fit of or under rage he acted primary mental state for his defense—that *43 to right But the confirms that waived provocation. serious record counsel, rested, “Are the trial court asked defense testify. Before the defense answered, just “I talked to lawyers him?” you going to call One counsel testify.” to Then both defense going and he said he’s [Thompson], opinion “It is his they reported, Thompson” together, “conferred with Mr. did not to There is no evidence testify.” that he does not wish (trial freely right. Bey obligation inquire waive his See at 499 court has no to waiver). cannot deficient Accordingly, Thompson defendant’s establish in this performance regard. Second, have a self- Thompson argues requested counsel should law,
defense instruction. Under Ohio (1) self-defense, a prove following establish defendant must elements: [t]o in creating giving the defendant was not at fault the situation rise to the (2) affray; that the defendant had a bona fide belief that he was imminent danger great bodily only of death or harm and that his means of from escape (3) force; danger such was the use of such that the defendant did not any duty violate to retreat or avoid the danger. Barnes, (2002). v.
State
Roberson’s It is not clear what other evidence Thompson would have Thus, had counsel introduce. presume trial counsel’s decision was (6th Cir.1998) (“under strategic. Wong See Money, F.3d Strickland, it is not our province dictate to defense counsel the-appropriate case”). in a strategy pursue particular sum, In Thompson cannot establish that constitutionally he received
ineffective assistance of during pretrial counsel or trial phases. Mitigation Phase XIV, of law No. proposition Thompson argues provided that counsel
ineffective mitigation phase assistance counsel in four respects. *44 credibility jury with the First, says lost all counsel Thompson 263} {¶ During phases. mitigation the trial and arguments at making inconsistent that the to find urged jury counsel phase, trial defense arguments at the closing have murder —“he didn’t aggravated for requisite lacked the intent Thompson had that the found jury hurt officer.” But after police to purpose, had jurors they the that trial counsel told purpose phase, at the acted to an says this comment amounted percent.” the verdict “100 “nailed” jurors to mislead the (unsuccessfully) tried that defense counsel had admission credibility urged when undermining counsel’s phase, completely thus to return a life sentence. jurors of defense claim, we must consider the context Thompson’s To evaluate 264} {¶ counsel said: During closing arguments, statement. mitigation-phase counsel’s for actions. Thompson’s] [Mr. There no excuse week, you verdict last which is a verdict guys your You found guys percent. nailed 100 we Again, important you happened morning.
It’s know what actions, present we do that evidence give you that to excuse his but do actions. help explain to you are to have to consider. important thing going
And that is an
just
ago,
minutes
Judge
you
if
remember what the
told
five
you
Because
unlikely
whether it is
that the offense
mitigating
one of the
factors is
under
for the fact that the Defendant was
would have been committed but
* *
duress,
*.
strong provocation
coercion or
inartfully expressed,
message
defense counsel’s
Although somewhat
had killed
disputed
never
consistent. Counsel
Instead,
consistently
tried to
trial.
his counsel
phase
Miktarian
either
the trial
counsel
jurors
Thompson’s
During
phase,
mental state.
focus
lack of
Thompson’s
“pur-
that the circumstances of the crime indicated
argued
murder, counsel
pose.”
jurors
aggravated
But after the
convicted
end. Rather than continu-
adjusted
argument
essential
different
same
counsel
jurors
just
who had
found
argue
purpose
purpose,
lack of
ing
crime and
jury’s
and instead cited
circumstances
endorsed
verdict
he acted
specific mitigating
mental
as reasons to find
factor:
Thompson’s
state
2929.04(B)(2).
short,
coercion, duress,
counsel
provocation.
R.C.
under
fault,
explain
his conduct.
attempted
to admit
but still
continued
decisions about how
strategic
including
Trial counsel’s
decisions—
murder—
aggravated
after a
is convicted of
present mitigation
case
defendant
Carter,
Ohio St.3d
great
are entitled to
deference. See State
reject
Here,
to trial counsel’s decision and
give
deference
N.E.2d 965
performance.
claim of deficient
Second,
*45
have
the nature
says
argued
counsel should
Thompson
{¶ 267}
2929.04(B). According
factor. R.C.
mitigating
circumstances of the offense as
July
his conduct on
any attempt
explain
counsel abandoned
to
Thompson,
to
his life.
positive aspects
to focus on the
urging
jury
instead
is mis-
mitigation argument
of trial counsel’s
Thompson’s description
{¶ 268}
good things
his
counsel did
to consider the
leading. During
closing,
urge
(and
history,
lack of
criminal
R.C.
Thompson
significant
had done
2929.04(B)(5)),
theory
Thompson
acted under
pressed
but he also
2929.04(B)(2).
fact,
In
coercion, duress, or
provocation.
extreme
See R.C.
at
on
Thompson
points
counsel
about how
must have felt
various
argued
length
Thus, far from
account and
July
entirely dismissing Thompson’s mitigation
crime,
to
actually attempted
the nature and circumstances of the
counsel
ignoring
of circumstance.
portray Thompson’s
July
conduct on
13 as
aberration born
Further, to the extent that
asserts that counsel should have
{¶ 269}
factor,
mitigating
the nature and circumstances of the crime as a
argued
separate
failing
do not find that counsel were deficient in
to do so. Counsel discussed
we
articulating
theory
of the crime in the context of
of coercion
circumstances
of the
provocation.
specifically argued
If he had
the nature and circumstances
have
able to
nature
mitigation,
prosecutor
argue
crime
then the
would
been
Frazier,
139,
testimony psychological neuropsychological experts. Although from Dr. court-appointed psychologist defense had used and consulted James Siddall, not ultimately testify. Thompson the defense decided Siddall would crime, deficient, argues given that this decision was the circumstances of his it But the psychologist testify because was crucial to have a about his actions. have to or whether that record does indicate what Siddall would testified at all testimony helpful Thompson. would have been hiring that counsel were deficient for not argues also not, however, separate neuropsychological expert. Thompson point does separate of a have merited possible organic impairment might evidence brain Mitchell, Fautenberry 515 F.3d by neuropsychologist. examination See Cir.2008) to determine (6th way examination is best (neuropsychological impairment). brain record, for not having fault counsel Accordingly, cannot neuropsychological of a appointment court testify failing request or for
Siddall expert. to the Last, failing object for state’s faults counsel prosecutori- part This claim closing argument. recasts
mitigation XI, which we We likewise reject. of law No. claim proposition al-misconduct failing object. that counsel were not deficient conclude reasons, Thompson’s allegations performance deficient For all these addition, to establish fail. has failed mitigation during phase Strickland, L.Ed.2d 674. 466 U.S. 104 S.Ct. We prejudice under these reject claims. therefore Ineffective Assistance Cumulative *46 “myriad deprived failures” Finally, asserts that counsel’s Thompson
{¶275}
counsel,
a fair
punishment,
him
freedom from cruel and unusual
right
of his
trial,
myriad
But the above
does
indicate
failures.
process.
analysis
and due
occurred, we
multiple
explained
in cases
errors have
have
And even
when
Hill,
v.
by sheer
of numbers.” State
75
prejudicial
weight
errors “cannot become
(1996).
195, 212,
K.
Error
Cumulative
XV, Thompson argues
In
of law No.
that the cumulative
proposition
many
at his trial
it
unfair.
impact
fundamentally
of the
errors
rendered
We
reject
above,
has
proposition.
this
As detailed
not established the
Powell,
necessary
his claim.
132 Ohio
multiple instances
error
sustain
See
¶ 223;
Garner,
233,
L.
the Death
Narrowing Requirement
1. Constitutional
XVI,
that Ohio law
In
of law No.
contends
proposition
{¶ 278}
unconstitutionally
subject
capital
to narrow the class of homicides
fails
aggravated
officer
punishment
killing
because
law-enforcement
constitutes
2903.01(E)
aggravating
and is
circumstance under
murder under R.C.
also
2929.04(A)(6).
101 Ohio
rejected
precise argument Bryan,
this
St.3d
R.C.
We
¶
Therefore,
272,
309
Challenges
and International-Law
2. Constitutional
always
presents
six oft-raised—and
law No. XVIII
Proposition
In ad-
scheme.
capital-punishment
to Ohio’s
rejected
challenges
—constitutional
violate interna-
dition,
death-penalty
statutes
argues
also
Ohio’s
Supremacy
offend the
Clause.
and treaties and therefore
tional law
Thompson’s
each of
rejected
have
considered
previously
We
capital punishment
statutory
imposition
“Ohio’s
framework
various claims.
* * *
to the United
and Fourteenth Amendments
Eighth
not violate
does
Jenkins,
v.
of the Ohio-Constitution.” State
provision
States Constitution
(1984),
164,
syllabus.
of -the
Nor
one
paragraph
St.3d
N.E.2d
Ohio
treaties,
Clause.
thereby offending
Supremacy
it violate international
does
502,
summarily reject
Accordingly,
709 N.E.2d
Bey, 85 Ohio St.3d
163,
See,
v.
125 Ohio St.3d
2010-
e.g.,
Fry,
of law No. XVIII.
State
proposition
¶
Davis,
404,
1. Circumstances (1) sentencing: in play Thomp- circumstances were aggravating Two duties, was in his official son a officer who engaged murdered law-enforcement (2) offense, 2929.04(A)(6), for another R.C. escape and he did so to detection R.C. 2929.04(A)(3). both jury’s finding aggravating The of supports evidence beyond reasonable doubt. circumstances (A)(6) that Miktarian was As to the evidence established specification,
{¶ 283} Thompson when over on police pulled a uniform and cruiser he wearing driving taken stop dispatch, Thompson’s Miktarian July reported had card, Thompson handcuff before he was insurance and one on placed license and murdered. (A)(3) on Thompson’s also conviction supports Sufficient evidence detection, appre purpose escaping Miktarian “for the killed
specification—he
hension, trial,
committed
the offender.”
punishment
or
for another offense
2929.04(A)(3).
Here,
jurors
correctly
the trial court
instructed
R.C.
(A)(3)
had to find that
guilty
specification, they
to find
of the
Thompson
order
offenses before the
following
had committed one or more of the
Thompson
resisting
operating
a concealed
arrest
“[cjarrying
weapon-
murder:
and/or
and/or
the influence
the noise ordinance.” See State
a motor vehicle while under
and/or
412,
mitigating 2929.04(B). character, addition, Thompson’s “history, background.” R.C. 2929.04(B)(1) statutory mitigating we must consider the factors under R.C. (victim (B)(2) (B)(3) (men- inducement), (duress, coercion, strong provocation), (B)(4) (B)(5) (lack defect), (youth), tal disease or criminal significant history), (B)(6) (B)(7) factors). (accomplice only), (any other relevant Thompson’s Mitigation
a. Evidence mitigation At hearing, presented the defense 13 witnesses. Thompson also made an unsworn jury. statement to the family and friends testified he was considerate and compassionate person. He had had a stable and had upbringing been involved in sports Cub Scouts and while He growing up. personal maintained close others, mother, sisters, relationships spent time care of taking including regularly and niece. also came to the aid of friends need. colleges attended three and became certified as a licensed (“LPN”). nurse He practical practicing years had been as LPN for three prior passionate Miktarian’s murder. Witnesses testified that his work helping as nurse and about others. himself stated that he loved his profession regularly patients. bonded with *48 convictions, also to Thompson’s religious witnesses testified de-
{¶ 289} him as a who From a scribing regularly sought spiritual Christian out counsel. activities, and led church, in service attended was involved young age, Thompson Bible studies. He first addressed Thompson gave an unsworn statement. Finally,
{¶ 290} said, said, He my “I from the bottom of heart.” family apologize Miktarian’s and * * anybody “I kill He “I can’t and didn’t want to ever apologize enough,” throughout face only kept straight is not and explained unfeeling also he had confessed to Thompson of counsel. noted he upon the trial the advice Miktarian had “told day promptly of the incident and that he killing [police] why.” provider, that as an home-health-care Thompson explained independent
{¶ 291} him to required in His shifts sometimes arrive rough neighborhoods. he worked decided to early morning night, Thompson purchase or late at so carry handgun. a concealed handgun. He took class and obtained license car to work. kept gun traveling He when He admitted preference then discussed his for loud music. Thompson playing violations on his record for past that he has one or two misdemeanor loud” on the driving up music too He noted that he was with his “music loudly. night of Miktarian’s murder. July 2008. As Finally, Thompson began recounting the events it,
Thompson night played tells out as follows: Miktarian’s cruiser just pulled driveway had into his when “ said, ‘Hey, where up behind him. Miktarian came to the vehicle pulled ” know, boom, boom, Miktari- ‘you boom music.’ you going,’'you playing are license, him also offered his insurance asked card. returned, Thompson got he Miktarian went back to his cruiser. When ” “ asked, ‘Sir, going on?’
out of his car and what is this about? What’s “[W]ell, and, know, you you music were again, you got Miktarian said loud boom, boom, boom, know, and I should it out you rip S word stuff playing I in here.” told you you pulled and then followed for two miles him until following not that Miktarian was Miktarian had realized driveway. According Thompson, in the lights pulling up he saw the angered comment Miktarian. Next, the cuffs” on grabbed Thompson’s “slapped Miktarian arm say not
Thompson’s right give Thompson warning hand. Miktarian did understanding why not Thompson reflexively jerked away, was under arrest. cruiser, police him toward the but angry. pulled Miktarian was so Miktarian inquiries happening. to his continued about what was respond would *49 barking, said, dog officer’s he had heard the Thompson At point, 297} {¶ know, other.” Then us, struggling with each you saw dog because the “maybe him in the back alarmed,” put would fearing that Miktarian “really Thompson got and continued ground” “heels into the dug his dog. Thompson car with the of the under arrest. ask whether he was to way, pretty some kind of ground “to the Thompson officer knocked
{¶ 298} and got up Thompson for a few seconds. “knocked wind out” [his] hard” and dog. to release the a unit. Then the officer threatened officer radio for heard the officer reach to his on. He saw the going to ask what was Thompson continued out, know, to shoot gun you he was his pulling and “could have sworn right side * * * he said “it kind of object, see the but actually did not Thompson me.” gun.” looked like the car, in get to shot Miktarian. He told Roberson Thompson pull up, they’re police was I’m here and the
they thinking, “[I]f left. He said he us.” happened, they’re going know what shoot going to want to had a told the officer that he admitted that he never Thompson stopped since he was thinking gun, was not even about the He said he weapon. traffic stop. in and it was not a normal driveway his own Weight Mitigating Factors b. factors: assign weight following mitigating us to to the Thompson urges offense; duress, coercion, or presence
the nature and circumstances character, background; significant his lack of history, his strong provocation; remorse; adjust prison. Thompson history; ability criminal his and his inducement, defect, youth, accomplice disease or status. argue does not mental Thompson significant In attributed argument, his briefs and oral to the nature and circumstances of the offense. See R.C. mitigating weight 2929.04(B). only and shot Miktarian Specifically, gun he claims he drew his According Thompson’s unsworn panicked. because he felt threatened and he car, statement, him threatened to release his against patrol the officer slammed him, said he because he Thompson panicked and reached for his belt. dog says all of reaching gun. Thompson’s that Miktarian was for his counsel believed call”—a Thompson very judgment these factors led to make “a bad “bad “judgment” he killed Miktarian. But the words and “decision” decision”—when officer. was control when he shot the suggest themselves addition, of the murder under- night behavior on the claim that he until he became convinced Miktarian cooperative mines his was upset him. at trial indicated that posed threat Evidence from girlfriend He later told his a call hours before he encountered Miktarian. midnight. her around And “pissed” picked up that he had been when he prison me,” “I Bar, “There’s demons Thompson saying, had heard patron Rav’s * me,” understands “Nobody f* *er that threatens will kill one * * talk it.” I can’t even doing. and am capable I’ve done s* of mind when Thompson’s state suggests This evidence drinking. also been had him over. pulled Miktarian stop traffic itself of the nature and circumstances important, More times. shot Miktarian claim of panic.
contradict four fell, Thompson After Miktarian First, range. from close he shot Miktarian twice head, trigger pulled down, Miktarian’s gun up against pressed bent *50 more times. two support of the crime do Thus, and circumstances the nature
{¶ 305} Thompson mitigating weight. him to any or entitle panic claims that the offense unlikely that “it is argue on much of the same evidence relies duress, coercion, was under committed, the fact that [he] but for would have been 2929.04(B)(2). above, the facts do not As we found strong or R.C. provocation.” him Miktarian four led to shoot provocation claims that support Thompson’s Thus, assign mitigating do not head, we point-blank range. in the at times (B)(2) factor. to the weight character, are Next, background his and Thompson says history, 2929.04(B). in his pride took Thompson under R.C. mitigating weight
entitled nursing his relationships with develop meaningful and strove profession tough in the Indeed, protect himself purchased gun only he patients. indicates that testimony also Mitigation he worked. neighborhoods where family with his strong relationships and has good had a childhood Thompson reliable, He is well- caring, dependable. him as regard friends. Others weight some to this give his church. We participant educated and is an active evidence. it we consider under R.C. argue youth, does not his but Thompson
2929.04(B)(4). This is he killed Miktarian. years was 23 old when Thompson Ballew, N.E.2d St.3d to some See State v. Ohio weight. entitled 2929.04(B)(4) (1996) entitled (youth) factor in (“find[ing] mitigating R.C. offense”). at the time of the twenty-two weight, to little since Ballew history significant have a Thompson does not recognize We 2929.04(B)(5). minor-misde- prior He has two criminal convictions. See R.C. music, ordinance, and one by playing a noise loud violating meanor convictions for while intoxicated. We control of motor vehicle having physical conviction for White, factor. significant weight to this See give 2929.04(B)(7), urges us to catchall R.C. provision, Under the 309}
{¶ the likelihood that family to Miktarian’s of remorse expressions consider statement, of his unsworn At the outset adjust prison. he can to life family. He of remorse to the victim’s expression genuine offered widow that he could not unfeeling is not and told Miktarian’s emphasized educated, nonviolent, addition, character as an her imagine pain. in prison. him to life adapt individual makes well suited caring, dependable weight. also these factors some give We (and his initial argue point does not Finally, although Thompson trial), we note that he admitted apparently were not admitted
statements of this admission is police upon significance to the his arrest. The responsibility diminished, however, initially fled the scene and resisted because in, struggled than turn himself with officers so arrest. Rather being appre- door in the violently pulled refrigerator process that he off circumstances, only weight minimal to his assign hended. Under these admissions. Weighing above, Thompson presented mitigating As detailed has some evidence not, however, mitigated
that holds are that his actions are weight. persuaded We either the nature and circumstances of the offense because he acted under supposed provocation. balance, the circumstances here aggravating outweigh any mitigat On *51 in
ing
Thompson’s
police
engaged
factors.
murder of a
officer
official duties and
his commission of murder to
detection are both
circumstances.”
escape
“grave
¶
272,
pared
approved
previously upheld
death sentences
similar cases. We have
death sentences for
a law-enforcement officer who is
in
killing
engaged
official
See,
228; Jones,
357-358,
duties.
e.g., Bryan
III. CONCLUSION affirm the judgments We of conviction and sentence of death. We also clarify that Thompson’s fifth-degree felony escape, sentence for Count is months, years. rather than five
Judgment affirmed. Kennedy, JJ., concur. O’ConnoR, C.J., and and O’Donnell in O’Neill, JJ., part. in and dissent part concur and Lanzinger, PfeifeR, dissenting part. part in PfeifeR, J., concurring in and is ample There convictions. in affirmance I concur committed a reasonable doubt beyond to conclude evidence Thompson’s propositions None of guilty. found of which he was heinous crimes Nevertheless, I have been. nor should majority, adopted of law was call, upon it is a close Although warranted. that a death sentence is agree do not circumstances, particularly mitigating I conclude that weighing, independent outweigh character, are sufficient background, history, parole. to life without I would sentence circumstances. aggravating J., foregoing opinion. concurs in the Lanzinger, dissenting part.
O’Neill, J., part in concurring in accused of his and a nurse stands A officer lies dead the street police death, this trial, a sentence of a a has recommended Following murder. appropriate that is the deciding whether independently court is charged imagined. A more serious matter cannot be result. death, required court is to consider a sentence of affirming Before facts and weigh all the independently and the offender and to
both the offense
2929.05(A). In
to affirm
case. R.C.
order
disclosed in the record
evidence
a
death,
beyond
persuaded
of this court “must be
majority
sentence
appro
circumstances make the sentence
aggravating
doubt that the
reasonable
¶26,
Franklin,
1,
And at know, barking, that, dog I see and hear music, you after and then that; and, way, by car with me you’re trying put okay, dog me threatened to release ground off the getting when I’m out”; I him stupid, will let anything like “Don’t do something he said go, all of this behind so, getting ready is this thinking I’m where now know, if I was under arrest and, not a ticket or even you why loud music this and me around like why you throwing are just say something, me around? slamming was I could have sworn he just side right reached down to his
When he —I know, out, to shoot me. you pulling gun directly contra- on the issue presented evidence Accordingly, only and the responsibility, to avoid trying theory
dicts
only
reasonable
otherwise.
attempt
to show
majority makes no serious
frightened
was confused
event is
tragic
for this
explanation
to attack him—either
planned
Miktarian
concluded that Officer
mistakenly
court’s conclusion
him. The
by shooting
or
releasing
police dog
detected,
punished
apprehended,
being
Miktarian to avoid
shot
*53
(“the purpose
factor
of
necessary proof
aggravating
of that
pure fiction. The
com-
trial,
for another offense
detection,
punishment
or
apprehension,
escaping
offender”)
Such
the fact
the crimes.
can
inferred from
only
mitted
be
a
doubt.
proof
an
is far
reasonable
beyond
inference
short
in this
result,
present
are
not two
factors
really
aggravating
As a
there
a
officer.
case,
status as
law-enforcement
only
instead
one:
the victim’s
but
weight
officer has
significant
factor
entitled
Clearly,
aggravating
—an
and
for the
sympathy
I
but
duty,
nothing
gratitude
in the line of
and have
died
factors are
Thompson’s mitigating
But Ashford
family of Officer Miktarian.
practical
college,
as
He went to
was a licensed
significant weight
entitled to
well.
runner,
nurse,
wrestler,
a
a
was a
steady job
and held
as home-health-care
nurse
church,
school,
his
community
member in
involved in his
high
and band
was
a police
took
life of
a
citizen. He admitted that he
law-abiding
and was
encounter,
and remorse
expressed significant regret
officer in this
and he
tragic
uncontrovert-
trying
responsibility.
without
minimize his own
The evidence is
a
he
carry
weapon,
ed that
held a license to
concealed
which
obtained
his
in
protection
practiced
profession
treating
people
for his own
as
sick
factor,
in
neighborhoods.
homes
while
dangerous
aggravating
their
The sole
outweigh
beyond
does not
a
significant
compelling,
Thompson’s mitigation
contrary
upon
reasonable doubt. The
conclusion to the
rests
cases
majority’s
and less
than that
present
significant mitigation
more heinous crimes
contrast,
in
presented here.1
the evidence
this record establishes
By
a routine
case
in the
stop gone tragically wrong.
was
traffic
This
is not
same
premeditated
taking
as the
intentional
of the life of another.
category
that the
Reaching
aggravating
outweigh
the conclusion
factors do
sacrifice,
in no
minimizes
mitigating
way
factors
Officer Miktarian’s
his
loss,
gave
result of
crime.
officer
his
family’s
horrible
This
But
fact
a police
life
defense
us all.
the mere
that Miktarian was
officer
justification
a
for
duty
the line of
cannot
death
acting
provide
imposing
Sherri Prosecuting Attorney, appellee. Assistant for Kasay, Defender, Kimberly and Rachel Troutman and S. Timothy Young, Ohio Public Defenders, Rigby, appellant. Assistant Public Clinic, Foundation, al., Appellants, d.b.a. et
Cleveland
Clinic
Cleveland
Appellee.
Zoning Appeals
City
Cleveland,
Board
appellants, Hospital Cleveland Clinic Foundation and Fairview