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Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

HOMICIDE OFFENSES (097)

Also see Self Defense; Arguments of Counsel/Improper argument by prosecutor; Jury Instructions; Competency to Stand Trial.

 

Culpability

Aiders and abettors

Level of offense; Lesser included offenses

Time and cause of death

Intent

Prior calculation and design

Other proof issues; Defenses

Vehicular homicide

Trial Procedure

Juveniles

Instructions

Penalty phase issues

Mitigation

Verdicts

Sentencing Issues

Merger

Execution

Other issues

 

R.C. 2903.01 -- Aggravated Murder.

R.C. 2903.02 -- Murder.

R.C. 2903.03 -- Voluntary manslaughter.

R.C. 2903.04 -- Involuntary manslaughter.

R.C. 2903.05 -- Negligent homicide.

R.C. 2903.06 -- Aggravated vehicular homicide.

R.C. 2903.07 -- Vehicular homicide.

R.C. 2929.02 - 2929.06 -- Penalties for murder and aggravated murder; death penalty sentencing procedures.

Culpability

State v. Wilson, 182 Ohio App. 3d 171, 2009-Ohio-1681 – Drug dealer was robbed at gunpoint, then gave chase and engaged in a gun battle with the robber. A stray shot fired by the robber killed a bystander. Drug dealer shot and wounded the robber. (1) Jury found the defendant not guilty of murder, but guilty of involuntary manslaughter. Affirmed. The victim‘s death was proximately caused by the defendant being an armed drug dealer, this setting the course of events that resulted in her death. (2) Though reckless homicide is a lesser included offense, counsel was not ineffective for not seeking instruction where record shows he gave consideration to the matter.

State v. Yarbrough, 104 Ohio St. 3d 1, 2004-Ohio-6087 -- Students were abducted from Ohio but murdered in Pennsylvania. Based on a continuing course of conduct the Ohio court would have had venue, but it did not have jurisdiction over a homicide committed in another state. R.C. 2901.11(B) requires the act that causes death, or the physical contact that causes death, or the death itself take place in Ohio. Error was missed by prosecutor, defense counsel and the trial judge. Subject matter jurisdiction cannot be waived. Nor may the defendant be tried for complicity. The express limitation on jurisdiction in homicide cases trumps broader language in the complicity statute.

State v. Miller, 96 Ohio App. 3d 384, 2002-Ohio-4931 -- Syllabus: "Felony murder as defined in R.C. 2903.02 (B), with the underlying offense of violence being felonious assault, is supported by evidence that establishes that the defendant knowingly caused physical harm to the victim."

State v. Hutchinson (1999), 135 Ohio App. 3d 459 -- Attempted aggravated murder conviction premised on attempted anal intercourse by a defendant who knows he is HIV positive affirmed.

State v. Lovelace (1999), 137 Ohio App. 3d 206 -- During a high speed chase an officer ran a stop sign and rammed another car, killing the driver. Majority finds proximate cause adequately proven to support involuntary manslaughter conviction of person leading the chase.

State v. Cooper, 147 Ohio App. 3d 116, 2002-Ohio-617 -- Defendant recklessly handled a one-month old, causing brain damage. Nine years later the child died and the defendant was convicted of involuntary manslaughter premised on child endangering. Court finds evidence adequately supported finding death was the proximate result of the earlier mistreatment.

State v. Brodie, 165 Ohio App. 3d 668, 2006-Ohio-982 -- Murder premised on death being the "proximate result of the offender committing or attempting to commit an offense of violence constituting a first- or second- degree felony" that is not a violation of the voluntary or involuntary manslaughter statutes is to be interpreted to refer to the predicate offense which also might be the basis for a charge of voluntary or involuntary manslaughter. Interpretation adopted by the trial judge nullified the felony murder portion of the murder statute.

Bradshaw v. Richey (1995), 126 S.Ct. 602 -- The doctrine of transferred intent applies to aggravated felony murder under R.C. 2903.01(B). Citing State v. Richey (1992), 64 Ohio St. 3d 353, 364.

State v. Heinish (1990), 50 Ohio St. 3d 231 -- Defendant convicted of aggravated murder with specifications premised on attempted rape and kidnapping. Court of appeals reversed kidnapping finding no evidence of asportation. Supreme Court reversed attempted rape and related specification finding circumstantial evidence relied upon insufficient to distinguish between rape and lesser offense of gross sexual imposition. Also see State v. Davis (1996), 76 Ohio St. 3d 107, 114-115.

State v. Williams (1996), 74 Ohio St. 3d 569 -- Paragraph one of the syllabus: "Neither the felony murder statute nor Ohio case law requires the intent to commit a felony to precede the murder in order to find a defendant guilty of a felony-murder specification." If a crime was committed as an afterthought during a continuing course of conduct, it may be tacked on as a predicate felony, even if it occurs after the victim has expired of suffered the fatal injuries. See pp. 576-578. Also see State v. Biros (1997), 78 Ohio St. 3d 426, 449-451; State v. Palmer (1997), 80 Ohio St. 3d 543, 570-571; State v. Mc Neill (1998), 83 Ohio St. 3d 438, 440-441.

State v. Coleman (1997), 124 Ohio App. 3d 78 -- Involuntary manslaughter and felonious assault convictions premised on the unlawful termination of another's pregnancy upheld against constitutional challenges. Also see State v. Alferi (1998), 132 Ohio App. 3d 69 involving an incident of road rage leading to conviction for aggravated vehicular homicide and aggravated vehicular assault. Equal protection, due process, cruel and unusual punishment and establishment of religion claims rejected.

State v. Weitbrecht (1999), 86 Ohio St. 3d 368 -- Syllabus: "R.C. 2903.04(B), as applied to a minor misdemeanor traffic offense which results in a vehicular homicide, does not violate the Eighth Amendment to the United States Constitution or Section 9, Article I of the Ohio Constitution." Also see State v. Manhart (1999), 135 Ohio App. 3d 499 which also rejects an equal protection claim. Compare State v. Campbell (1997), 117 Ohio App. 3d 762.

State v. Brown, (1996), 117 Ohio App. 3d 6 -- Inclusion of minor misdemeanors as predicate offenses for involuntary manslaughter is not a denial of equal protection. See dissent.

State v. Garland (1996), 116 Ohio App. 3d 461, 468 -- "A decedent's contributory negligence does not exonerate liability under R.C. 2903.04(B) unless such negligence was the sole proximate cause of the accident." Defendant was convicted of involuntary manslaughter after running a stop sign, causing a fatal accident.

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Aiders and abettors

State v. Moody (March 13, 2001), Franklin Co. App. No. 98AP-1371, unreported -- (1) Defendant testified he fired his weapon in the air to induce a group of youths to flee after two of their number had been shot by the codefendant. It was error not to instruct the jury they must find he had the requisite intent to kill or cause serious physical harm in order to be found guilty as an aider and abettor. (2) If the principal offender acted in self-defense there was no offense, thus there can be no complicity. Jury must be instructed accordingly. State v. Hill (1994), 70 Ohio St. 3d 25, applied. Same case following retrial: State v. Moody, Franklin App. No. 02AP-353, 2003-Ohio-950.

State v. Taylor (1993), 66 Ohio St. 3d 295 -- Syllabus: "The fact that pursuant to R.C. 2923.03(F), a defendant who aids and abets another in committing an offense 'shall be prosecuted and punished as if he were a principal offender' and so may be convicted of aggravated murder under R.C. 2903.01(B) does not make the defendant 'the principal offender' for purposes of imposing the death penalty under R.C. 2929.04(A)(7). (State v. Penix [1987], 32 Ohio St. 3d 369...followed.)" Also see State v. Getsy (1998), 84 Ohio St. 3d 180 197 -- "...(T)he term 'principal offender' in R.C. 2929.04(A)(7) means the 'actual killer.'"

In re Washington (1998), 81 Ohio St. 3d 337 -- An aider and abettor may be found guilty of aggravated murder if from the circumstances it can be inferred that he individually is proven to have acted with an intent to kill. This may be inferred from entering into a common design knowing that a dangerous instrumentality was to be employed in committing the felony, or if the manner of committing the felony was likely to produce death.

State v. Chambers (1977), 53 Ohio App. 2d 266 -- Homeowner shot and killed one of two men burglarizing his house. Second burglar was properly convicted of involuntary manslaughter since this was a foreseeable consequence of his actions, therefor bringing it within the proximate cause theory of criminal liability set forth in the statute. Also see State v. Losey (1985), 23 Ohio App. 3d 93 -- burglary victim became upset and died shortly afterwards.

State v. Ensman (1991), 77 Ohio App. 3d 701 -- Amendment of bill of particulars nineteen days before trial to allege culpability as an aider and abettor did not change the name or identity of the crime charged, since an indictment phrased in terms of the principal offense is sufficient to charge complicity as well.

State v. Widner (1982), 69 Ohio St. 2d 267 -- Defendant drove away from site of police detention after passenger fired gun at officers. Sufficient showing for defendant to be found guilty as an aider and abettor in attempted murder.

State v. Williams (1990), 67 Ohio App. 3d 677 -- Participation in a disturbance resulting in a death immediately caused by others sufficient to sustain involuntary manslaughter conviction.

State v. Robinson (1994), 98 Ohio App. 3d 560, 573-575 -- Gang member furnished companion with a gun, was aware companion planned to commit a robbery and was present when the companion was fatally wounded by the intended victim. Evidence found sufficient to establish proximate cause element of involuntary manslaughter.

State v. Scott (1980), 61 Ohio St. 2d 155 -- Paragraph five of the syllabus: "Where a jury could reasonably find against the state on the issue of an aider and abettor's purpose to kill, and find for the state on the remaining elements of felony murder, which themselves would sustain a conviction for involuntary manslaughter, a charge to the jury on involuntary manslaughter is both warranted and required.(State v. Nolton, 19 Ohio St. 2d 133, 135, approved and followed.) "

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Level of offense; Lesser included offenses

State v. Harwell, 102 Ohio St. 3d 128, 2004-Ohio-2149 -- A juvenile bound over for trial as an adult charged with aggravated murder with death penalty specifications is charged with a capital offense. Though he is not eligible for the death penalty, he is entitled to the benefit of capital sentencing guidelines.

State v. Barnes, 94 Ohio St. 3d 21, 25-28, 2002-Ohio-68 -- Felonious assault by means of a deadly weapon is not a lesser included offense to attempted murder. See concurring opinion for why it should be.

State v. Duncan, 154 Ohio App. 3d 254, 2003-Ohio-4695 -- Guilty verdicts on felony murder, murder and voluntary manslaughter are inconsistent and must be reversed. Double jeopardy does not bar retrial on all charges. Nor does collateral estoppel. Court characterizes conviction on both as an error in instructions. Supreme Court declined further review. Better view is that conviction should have been entered on voluntary manslaughter as (1) it was proper to instruct the jury on all charges to be considered independently, (2) since purpose includes knowledge, the culpable mental state for voluntary manslaughter, the verdicts are not inconsistent, and (3) the finding on provocation settled that issue and precludes relitigation.

State v. Perdue, 153 Ohio App. 3d 213, 2003-Ohio-3481 -- Defendant indicted for murder appeals from conviction for voluntary manslaughter. While there was evidence the victim was enraged, the defendant said he was fearful, but not enraged. Conviction reversed absent proof of the mitigating factor.

In re York (2001), 142 Ohio App. 3d 524 -- Thirteen year old took gun from father's sock drawer and showed it to friends. Though the clip was removed, a chambered round was fired, killing a 10-year old friend. Evidence did not establish a purposeful killing, but did support conviction for involuntary manslaughter premised on aggravated menacing.

State v. Rhodes (1992), 63 Ohio St. 3d 613 -- Syllabus: "A defendant on trial for murder or aggravated murder bears the burden of persuading the fact finder, by a preponderance of the evidence, that he or she acted under the influence of sudden passion or in a sudden fit of rage, either of which was brought on by serious provocation occasioned by the victim that was reasonably sufficient to incite the defendant into using deadly force, R.C. 2903.03(A), in order for the defendant to be convicted of voluntary manslaughter rather than murder or aggravated murder. (State v. Muscatello [1978], 55 Ohio St. 2d 201...construed and modified.)" See dissent for basis to object to instruction placing such a burden on the defendant. Compare Mullaney v. Wilbur (1975), 421 U.S. 684 -- A defendant may not be given the burden of disproving an element of a crime through application of a presumption. Maine homicide statute provided a conclusive presumption of malice aforethought from proof that the homicide was both intentional and unlawful. To be found guilty of manslaughter, the defendant had to prove by a preponderance that he acted in the heat of passion or on sudden provocation. Also see State v. Muscatello (1977), 57 Ohio App. 2d 231.

State v. Holt (May 18, 1989), Franklin Co. App. No. 88AP-1080, unreported (1989 Opinions 1714, 1718-1719) -- The voluntary manslaughter statute creates the offense of knowingly causing the death of another, irrespective of the mitigating circumstance of provocation by the victim. Also see State v. Cathcart (July 10, 1990), Franklin Co. App. No. 89AP-1118, unreported (1990 Opinions 2856, 2863-2865); State v. Burgess (April 10, 1984), Franklin Co. App. No. 83AP-635, unreported (1984 Opinions 934); State v. Cunningham (July 25, 1991), Franklin Co. App. No. 90AP-427, unreported (1991 Opinions 3475, 3513-3514).

State v. Jenkin (1984), 15 Ohio St. 3d 164 -- Involuntary manslaughter is a lesser included offense to aggravated murder based on a purposeful killing in the course of one of the enumerated felonies. Also see State v. Scott (1980), 61 Ohio St. 2d 155; State v. Cooper (1977), 52 Ohio St. 2d 163.

State v. Thomas (1988), 40 Ohio St. 3d 213 -- Involuntary manslaughter is a lesser included offense of aggravated murder premised on prior calculation and design.

State v. Rohdes (1986), 23 Ohio St. 3d 225 -- Involuntary manslaughter is a lesser included offense of murder. Also see State v. Johnson (1983), 6 Ohio St. 3d 420; State v. Hill (1987), 31 Ohio App. 3d 65.

State v. Box (1993), 89 Ohio App. 3d 614, 618-619 -- Felonious assault is a lesser included offense of aggravated murder. Compare State v. Nelson (1996), 122 Ohio App. 3d 309 holding that 2903.11(A)(2) felonious assault is not a lesser included offense to attempted murder because it requires proof of the additional element of the use of a deadly weapon. But R.C. 2901.11(A)(1) felonious assault premised on serious physical harm should still be considered a lesser included.

State v. Koss (1990), 49 Ohio St. 3d 213 -- Paragraph four of the syllabus: "Negligent homicide is not a lesser included offense of murder." Also see State v. Eubank (1987), 38 Ohio App. 3d 141 -- Negligent homicide is not a lesser included offense of aggravated murder. State v. Hill (1987), 31 Ohio App. 3d 65; State v. Jenkins (1983), 13 Ohio App. 3d 122 (murder). Overrules cases reaching the opposite conclusion. State v. Banks (Franklin Co. 1986), 31 Ohio App. 3d 57; State v. King (1984), 20 Ohio App. 3d 62 -- Only assumed to be a lesser included for purposes of argument whether was required by facts of the case.

State v. Hague (1989), 61 Ohio App. 3d 756 -- Felonious assault of a police officer is not a lesser included offense of attempted aggravated murder.

State v. Kidder (1987), 32 Ohio St. 3d 279 -- Aggravated menacing is not a lesser included offense of attempted murder.

State v. Williams (May 15, 1997), Franklin Co. App. No. 96APA08-1077, unreported (1997 Opinions 1757) -- There is no such offense as attempted involuntary manslaughter, since the definition of the offense of involuntary manslaughter encompasses attempt, thus making the general attempt statute inapplicable.

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Time and cause of death

State v. Dykas, 185 Ohio App. 3d 763, 2010-Ohio-359 ¶23-29 – Punch to the jaw wasn’t fatal, but epidural hematoma caused when head hit sidewalk was the cause of death hours later. Involuntary manslaughter conviction stands as such a fall was a predictable consequence of a blow to the head.

State v. Cousin (1982), 5 Ohio App. 3d 32 -- Coroner's verdict and death certificate indicating accidental death was not conclusive for purposes of related criminal homicide prosecution.

State v. Fouty (1996), 110 Ohio App. 3d 130 -- Coroner did not personally perform autopsy, and based testimony on reports prepared by associates. Reports were not admitted into evidence. Testimony was improperly received. Vehicular manslaughter conviction reversed, as without coroner's testimony there was no basis for finding death wasn't the result of victim's own negligence or improper intubation by medical personnel.

State v. Beaver (1997), 119 Ohio App. 3d 385, 390-395 -- Defendant died 25 days after being shot in the stomach, but testimony as to cause of death was compromised. Though the court concludes the case was properly submitted to the jury, the opinion provides discussion of the chain of causation which must be shown between the defendant's criminal act and death.

State v. Long (1983), 7 Ohio App. 3d 248 -- Headnote 2: "In the case of a victim who was revived by chemical means and placed on a life support system, the last element of the offense of aggravated vehicular homicide did not occur until the brain death of the victim as determined by a physician based on accepted medical standards and tests. (R.C. 2108.30, applied.)

State v. Johnson (1978), 56 Ohio St. 2d 35 -- Defendant proximately caused death of victim even though immediate cause may have been disconnection of oxygen supply to respirator. At p. 40: "It is the general rule that one who inflicts injury upon another is criminally responsible for that person's death regardless of whether different or more skillful medical treatment might have saved his life...This rule has been qualified where there has been a gross or wilful maltreatment of the patient by the medical personnel. Parsons v. State (1852), 21 Ala. 300; Crews v. State (1932), 44 Ga. App. 546, 162 S.E. 146, which is shown to have been an independent intervening cause of the patient's death. State v. Cox (1960), 82 Idaho 140, 351 P. 2d 472."

State v. Nicely (1988), 39 Ohio St. 3d 147 -- Paragraph one of the syllabus: "In the absence of a human body, a confession, or other direct evidence of a death, circumstantial evidence alone may be sufficient to support a conviction for murder."

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Intent

State v. Marshall, 175 Ohio App. 3d 488, 2008-Ohio-955, ¶53 – The proximate result element of involuntary manslaughter is the equivalent of proximate cause in civil litigation. It is satisfied when the accused sets in motion a sequence of events that makes the death of another a direct, proximate, and reasonably inevitable consequence. Only a reasonably unforeseeable intervening cause will absolve one of criminal liability in this context. Citing State v. Lovelace (1999), 137 Ohio App. 3d 206, 21; State v. Chambers (1977), 53 Ohio App. 2d 266, 272-273.

State v. Scott (1980), 61 Ohio St. 2d 155 -- Paragraph four of the syllabus: "The existence of an accused's purpose to kill must be found by the jury under proper instructions from the trial court and can never be determined by the court as a matter of law."

State v. Garner (1995), 74 Ohio St. 3d 49, 60 -- "The law has long recognized that intent, lying as it does within the privacy of a person's own thoughts, is not susceptible to objective proof. The law recognizes that intent can be determined from the surrounding facts and circumstances, and persons are presumed to have intended the natural, reasonable and probable consequences of their voluntary acts...Intent '"'"can never be proved by the direct testimony of a third person and it need not be. It must be gathered from the surrounding facts and circumstances....'"'"' Similarly, while guilt of aggravated murder requires proof of specific intent to kill, R.C. 2903.01 contemplates that such an intent may be inferred in a felony-murder when the offense and the manner of its commission would be likely to produce death." (Citations omitted.)

State v. Lockett (1976), 49 Ohio St. 2d 48 -- Paragraph three of the syllabus: Purpose to kill on the part of all involved in a robbery may be inferred from joint planning, including the use of an inherently dangerous instrumentality. Also see State v. Clark (1978), 55 Ohio St. 2d 257.

State v. Johnson (1978), 56 Ohio St. 2d 35, 39 -- Purpose to kill may be inferred from circumstances, including striking victim on the head with a shotgun and leaving him handcuffed to a bannister. Also see State v. Edwards (1985), 26 Ohio App. 3d 199.

State v. Cotton, (1978), 56 Ohio St. 2d 8 -- Paragraph three of the syllabus: "Where evidence adduced at trial reveals the presence of sufficient time and opportunity for the planning of an act of homicide to constitute prior calculation, and the circumstances surrounding the homicide show a scheme designed to implement the calculated decision to kill, a finding by the trier of fact of prior calculation and design is justified." Also see State v. Jenkins (1976), 48 Ohio App. 2d 99, 101-102.

State v. Austin (1976), 52 Ohio App. 2d 59 -- An inference of guilty intent may be drawn from direct evidence that the defendant concealed the victim's body.

State v. Creech (1964), 5 Ohio App. 2d 179 -- In a second degree murder prosecution (purposely causing the death of another, now murder), where the only evidence is that the defendant aimed, if at all, above the decedent, intending to scare him, and that the shooting was unintended or accidental, the evidence at best sustains a conviction for manslaughter.

State v. Fox (1981), 68 Ohio St. 2d 53 -- Syllabus: "Attempted murder, under R.C. 2923.02 and 2903.02, is a specific intent crime, for which evidence of voluntary intoxication may be taken in order to show defendant was thereby precluded from forming the necessary 'purpose' to commit murder. (Nichols v. State, 8 Ohio St. 435, followed.)"

State v. Huertas (1990), 51 Ohio St. 3d 22, 27-28 -- Intoxication does not necessarily make a defendant incapable of acting with prior calculation and design.

State v. Solomon (1981), 66 Ohio St. 2d 214 -- Under the doctrine of transferred intent, if a person acts with the purpose to kill one person, but causes the death of another instead, he may be found guilty of the degree of offense he intended to commit against the intended victim. Also see Wareham v. State (1874), 25 Ohio St. 601; State v. Robinson (1999), 132 Ohio App. 3d 830.

State v. Sowell (1988), 39 Ohio St. 3d 322 -- (1) As to the doctrine of transferred intent applied to prior calculation and design, paragraph two of the syllabus states: "If one purposely causes the death of another and the death is the result of a scheme designed to implement the calculated decision to kill someone other than the victim, the offender is guilty of aggravated murder in violation of R.C. 2903.01(A)..." (2) Voluntary intoxication may be considered as a mitigating factor at the penalty phase of a death penalty trial.

State v. Ziko (1991), 71 Ohio App. 3d 832, 836-837 -- Involuntary manslaughter is not a strict liability offense, nor is recklessness the culpable mental state. While the state must prove proximate cause, the court is required to instruct on no culpable mental state other than that specified for the underlying offense.

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Prior calculation and design

State v. Reddy, 192 Ohio App. 3d 108, 2010-Ohio-5759 – State failed to prove prior calculation and design where the defendant’s whack job mother came into his room at 4:00 in the morning on Christmas Eve to tell him he had to move out, then returned with a dagger and started the fight that resulted in her death. Offense decreased from aggravated murder to murder.

State v. Brown, 115 Ohio St. 3d 55, 2007-Ohio-4837 -- In a capital case the prosecutor's file was sealed for purposes of appellate review. It was found to include statements casting suspicion elsewhere which should have been furnished in discovery. Combined with an ineffective assistance of counsel claim relating to the competence of a key witness, confidence in the verdict with respect to prior calculation and design, and the death sentence was so undermined that a new trial is ordered.

State v. Noggle (2000), 140 Ohio App. 3d 733, 747-750 -- Being prepared to kill if the situation calls for it does not amount to the prior calculation and design that is necessary to sustain a conviction pursuant to R.C. 2929.04(A)(7). Subsection referred to is the death penalty specification pertaining to felony murder where the defendant was either the principal offender, or where the principal offender committed the aggravated murder with prior calculation and design. Plain error reversal where jury was told being prepared to kill was enough to establish the mens rea element of prior calculation and design. Principle should apply equally to prior calculation and design as used in the aggravated murder statute [R.C. 2903.01(A).]

State v. Trewartha, 165 Ohio App. 3d 91, 2005-Ohio-5697 -- Court addresses sufficiency of proof of prior calculation and design in an inconsistent verdict case, ultimately concluding that the offense was too spontaneous to support a finding of prior calculation and design. The jury had found the defendant guilty of capital murder in the course of an aggravated robbery and a prior calculation and design specification, but had found him not guilty of aggravated murder premised on prior calculation and design. Conviction stands on aggravated murder without the specification.

State v. Jalowiec, 91 Ohio St. 3d 220, 229, 2001-Ohio-26 -- Though homicide took place in Cuyahoga County, venue lay in Lorain County as that is where prior calculation and design occurred.

State v. Jones, 91 Ohio St. 3d 335, 345-346, 2001-Ohio-57 -- Defendant's prior statement regarding willingness to kill a police officer, plus the manner in which the victim was shot, established prior calculation and design.

State v. Jackson, 92 Ohio St. 3d 436, 441, 2001-Ohio-1266 -- Prior calculation and design shown where after completing a robbery the defendant paused, made a conscious decision to carry out execution style killings, and retrieved a pillow to use to muffle the shots.

State v. Dapice (1989), 57 Ohio App. 3d 99, 103 -- Prior calculation and design is an element of the offense of aggravated murder and not a culpable mental state in the sense of knowledge, purpose etc.

State v. Taylor (1997), 78 Ohio St. 3d 15, 18 -- Prior calculation and design is an indivisible term defining the mens rea element of proof required for a violation of R.C. 2903.01(A). "Prior calculation" and "design" are not two separate elements.

State v. Robbins (1979), 58 Ohio St. 2d 74, 78 -- Prior calculation and design is a more stringent element that the deliberate and premeditated malice required under former law. It may be found where the defendant left victim's presence to retrieve death weapon from his nearby apartment.

State v. Reed (1981), 65 Ohio St. 2d 117, 121 -- Prior calculation and design may not be inferred from what appears to be instantaneous deliberation or from comment of a general nature at a remote time: "The statements appellant made to a classmate that he would kill any police officer who got in the way of any crime he might commit do not show that appellant designed a scheme in order to implement a calculated decision to kill."

State v. Fears (1999), 86 Ohio St. 3d 329, 342 -- Time to reflect and decide who to shoot, and discussion of the choice with cohort, were indicative of prior calculation and design.

State v. Davis (1982), 8 Ohio App. 3d 205 -- Prior calculation and design may not be found where the shooting incident developed precipitously as the defendant scuffled with those seeking to block his entrance to a bar.

State v. Richardson (1995), 103 Ohio App. 3d 21 -- Prior calculation and design not shown where defendant was knocked down in a fight, was furnished a gun by a relative who had observed the fight, and blazed away at his opponent, killing a bystander. There was at most momentary deliberation. Applying the doctrine of transferred intent, should only be found guilty of murder. Compare State v. Stoudemire (1997), 118 Ohio App. 3d 752 where killing took place the following day, after the defendant had expressed an intention to retaliate.

State v. Mulkey (1994), 98 Ohio App. 3d 773 -- Prior calculation and design not proven where the defendant left, then rejoined an altercation which others had continued. There was no evidence that during the interim he obtained the weapon used to stab the victim, or otherwise indicating that the stabbing was a calculated, as opposed to an instantaneous, decision.

State v. Goodwin (1999), 84 Ohio St. 3d 331, 344 -- Manner in which the robbery was committed and holding a gun to the heads of unresisting victims were indicative of prior calculation and design. See concurring and dissenting opinion. Also see State v. Mardis (1999), 134 Ohio App. 3d 6; State v. Campbell (2000), 90 Ohio St. 3d 320, 330.

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Other proof issues; Defenses

State v. Barker, 191 Ohio App. 3d 293, 2010-Ohio-5744 – (1) Defendant claimed he last saw his fiancé outside a bar where she returned an engagement ring and left in a car with another man. In the ensuing three years she hadn’t been seen, didn’t contact her mother or her children, or access her bank account. This was sufficient to establish corpus delicti. (2) Based on the defendant’s admissions, offenses of felonious assault and felony murder merged.

Fowler v. United States (2011), 131 S.Ct. 2045 – The federal witness tampering act makes it a crime to kill another person with the intent to prevent communication with a law enforcement officer of the United States. This does not reach communication with law enforcement officers in general. The government must show there was a reasonable likelihood relevant communication would have been made to a federal officer.

State v. Sapp, 105 Ohio St. 3d 104, 2004-Ohio-7008 -- "Course of conduct" in relation to a death penalty specification held to encompass crimes committed in a similar manner over an extended period of time. But see the dissenting opinions in State v. McKnight, 107 Ohio St. 3d 101, 2005-Ohio-6046.

State v. Sanders, 92 Ohio St. 3d 245, 2001-Ohio-189 -- Syllabus: "The authorities in charge of a prison have no duty to 'negotiate in good faith' with inmates who have seized the prison and taken hostages, and the failure of those authorities to negotiate is not an available defense to inmates charged with the murder of a hostage." But conditions at the institution and the resulting mental and emotional stress inflicted on inmates is relevant at the penalty phase of a capital trial. See pp. 266-267.

State v. Griffin (2001), 142 Ohio App. 3d 65 -- (1) At p. 72: "The threshold question in determining the admissibility of other-acts evidence under Evid. R. 414(B) is whether any of the matters of proof (motive, opportunity, scheme, etc.) are at issue in the case. If not, then other-acts evidence is not admissible, no matter how telling, and regardless of whether an accused's past behavior constitutes a 'behaviorist fingerprint.'" (2) A defendant does not place his intent at issue merely by entering a plea of not guilty. (3) Other acts of violence by the defendant towards his wife in the trailer park where they lived were admissible to prove identity in a murder vs. suicide case. Compare State v. Hawn (2000), 138 Ohio App. 3d 449, 462. (4) Where drug and alcohol use was not at issue in regard to the homicide, testimony concerning prior incidents was improperly admitted, nor was a supposed threat to one of those witnesses. (5) Victim's hearsay statements explaining she was afraid of the defendant because he held a knife to her throat in the middle of the night were not admissible. Defense did not open the door to comparable inquiry when it backed away from further questioning after a witness said the victim was in the habit of bringing the family steak knives to work.

State v. Scott, Cuyahoga App. No. 83477, 2004-Ohio-4631 -- Aggravated murder conviction premised on robbery was not supported by the evidence. Though the defendant sprayed a car with bullets after announcing an intention to take a jacket worn by one of the occupants, he did not take the jacket, or do anything else which might be construed a substantial step in the commission of a theft offense.

State v. Roquemore (1993), 85 Ohio App. 3d 448, 452-458 -- It was error to admit testimony by a "profilist" called by the state to testify that the crime scene fell within patterns of know violent behavior he had studied in the past. Failure of the expert to maintain complete statistics, though he claimed "profiling" was statistics based, failure to lay foundation for expression of opinion, relevancy, hearsay, and invasion of the province of the jury are discussed. Prosecution sought to establish there had been a rape in an involuntary manslaughter case.

State v. Fannings (September 6, 1979), Franklin Co. App. No. 79AP-24, unreported (1979 Opinions 2540) -- The state may not use the tactic at trial of introducing, as a part of its case in chief, a statement of the defendant which in essence embodies his defense, and then proceed to tear down that defense by introducing circumstantial evidence which contradicts portions of that statement. Compare State v. Walden  (April 8, 1982), Franklin Co. App. No. 81AP-335 (1982 Opinions 983) where the court concluded the state properly introduced evidence the defendant had made false exculpatory statements to the police as evidence of consciousness of guilt.

State v. Sage (1987), 31 Ohio St. 3d 173 -- Paragraph one of the syllabus: "The assertion that a death was the result of a mutual suicide pact is a complete defense to any crime by the survivor to the pact; thus, given such assertion, the trial court in an aggravated murder case does not commit reversible error by refusing to charge on lesser included offenses."

Akron v. Head (1995), 73 Ohio Misc. 3d 67 -- Survivor of a suicide pact, who furnished weapon, found not guilty of negligent homicide. State v. Sage (1987), 31 Ohio St. 3d 173 applied.

State v. Getsy (1998), 84 Ohio St. 3d 180, 197-200 -- Duress is not a defense to aggravated murder premised on prior calculation and design. It may, however, be a defense to aggravated murder premised on felony murder, may be a defense to specifications, and is a mitigating factor. At p. 205: Duress and coercion are to be construed more broadly when considered as mitigating factors than when advanced as an affirmative defense.

State v. Grinnell (1996), 112 Ohio App. 3d 124, 143-146 -- Though at common law duress is not a defense to taking the life of an innocent person, there is no Ohio precedent that duress is not a defense to murder. Duress is recognized as a mitigating factor at the penalty phase of a death penalty prosecution, and may be a defense to a predicate felony in a felony murder prosecution. Even assuming duress is an affirmative defense to murder, court concludes facts of a Lucasville riot prosecution did not warrant duress instruction being given.

State v. Randle (1980), 69 Ohio App. 2d 71 -- Defendant may introduce testimony concerning victim's threats towards him and instances of violent conduct of victim, provided were known to him at time of offense, in order to establish belief was in danger. The defendant may present evidence of the deceased's narcotics involvement to the extent relevant to the claim of self-defense. Also see State v. Smith (1983), 10 Ohio App. 3d 99; State v. Carlson (1986), 31 Ohio App. 3d 72; State v. Roderick (1907), 77 Ohio St. 301; State v. Schmidt (1979), 65 Ohio App. 2d 239. If not within personal knowledge, such evidence is inadmissible. State v. Dickerson (1907), 77 Ohio St. 34.

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Vehicular homicide

State v. Skaggs, 185 Ohio 752, 2010-Ohio-302, ¶27 – Defendant claimed he was suffering an epileptic seizure when his truck ploughed into cars stopped at an intersection at 96 mph, killing three. In rejecting his manifest weight claim the court finds the charging statute doesn’t require proof of reckless operation. Instead, the state must show that the accused caused death or serious physical harm “recklessly.” The defendant’s failure to take his anti-seizure medication and his failure to report a prior seizure to his physician established recklessness. ¶30-35: Testimony concerning the defendant’s rage and anger exhibited at a pawn shop and a Rally’s before the cash was admissible pursuant to Evid. R. 404(B) to show lack of accident.

State v. Lawrence, 180 Ohio App. 3d 468, 2009-Ohio-33 – Related counts of involuntary manslaughter and aggravated vehicular assault do not merge where there are separate victims.

State v. Mayl, 106 Ohio St. 3d 207, 2005-Ohio-4629 -- Syllabus: "When results of blood-alcohol tests are challenged in an aggravated-vehicular-homicide prosecution that depends upon proof of an R.C. 4511.19(A) violation, the state must show substantial compliance with R.C. 4511.19(D)(1) and Ohio Adm. Code Chapter 3701-53 before the test results are admissible. (2) When a blood-alcohol test is not requested by law enforcement but is administered in connection with medical treatment by qualified medical personnel and analyzed in an accredited laboratory, the state must show substantial compliance with R.C. 4511.19(D)(1) and Ohio Adm. Code Chapter 3701-53 before the test results are admissible in a prosecution depending upon proof of an R.C. 4511.19(A) violation." State v. Mayl, 154 Ohio App. 3d 717, 2003-Ohio-5097, affirmed.

In re Neill, 160 Ohio App. 3d 439, 2005-Ohio-1696 -- Juvenile pulled out of a fast food restaurant into the path of a motorcycle travelling between 5 and 40 mph over the speed limit, killing the motorcyclist and his passenger. In the majority's view, the trial court erroneously concluded the juvenile had to yield to all traffic. Remanded for the trial court to determine whether the motorcyclist's excessive speed over the prima facie speed limit forfeited the right of way.

State v. Langenkamp (2000), 137 Ohio App. 3d 614 -- Defendant began passing slow moving truck in a passing zone, but continued to pass through two no passing zones at a speed in excess of the posted limit. Tractor ahead of the truck turned left in front of defendant, possibly without signalling, and driver was killed in collision. Vehicular manslaughter conviction affirmed.

State v. Bassett, Lucas App. No. L-01-1493, 2002-Ohio-6689 -- For purposes of the aggravated vehicular homicide statute, proof of being under the influence of a drug of abuse adequately established by combination of the defendant's conduct and the presence of a metabolite of cocaine in her blood.

State v. Nguyen, Franklin App. No. 02AP-1138, 2003-Ohio-2328 -- Recklessness element of aggravated vehicular homicide proven where defendant lost control on a curve on a rainy night while driving 100-110 in a 35 zone, with the radio turned up and over the protests of his passengers.

State v. Kinder (2000), 140 Ohio App. 3d 235 -- Applying R.C. 1.58, the defendant was entitled to the benefit of the version of controlling statutes which went into effect shortly before the sentencing hearing, which reduced the length of the license suspension the court was permitted to impose. While Kinder was disapproved in State v. Kaplowitz, 100 Ohio St. 3d 205, 2003-Ohio-5602, this was only with respect to the incarceration aspect of the sentence. Defendants remain entitled to the benefit of reduced license suspensions under the revised statutes.

State v. McKinney, Montgomery App. No. 19645, 2003-Ohio-3834 -- Occupational driving privileges may not be granted on a license suspension tied to a vehicular homicide conviction.

State v. Prosser, Hamilton App. No. C-030187, 2003-Ohio-5516 -- (1) Since aggravated vehicular homicide under a former version of the statute was non-probationable if alcohol was involved, the sentence was mandatory and expungement is unavailable. (2) Court was without authority to modify previously imposed mandatory lifetime license suspension under the former aggravated vehicular homicide statute.

State v. Chippendale (1990), 52 Ohio St. 3d 118 -- It was the intent of the legislature that out of a single incident a defendant could be charged with the general offense of involuntary manslaughter and the specific offense of aggravated vehicular homicide, though conviction may be entered on only one. Also see State v. Davis (1983), 13 Ohio App. 3d 265; State v. Gabriel (1991), 72 Ohio App. 3d 825.

State v. Torres (1986), 31 Ohio App. 3d 118 -- Involuntary manslaughter and aggravated vehicular homicide are allied offenses of similar import.

State v. Whitaker (1996), 111 Ohio App. 3d 608 -- (1) Excessive speed by itself was not sufficient to establish recklessness for purposes of conviction of aggravated vehicular homicide. Speed did establish recklessness, warranting conviction for vehicular homicide. (2) Loss of license for having failed to appear in court on another offense made either offense non-probationable.

State ex rel. Koren v. Grogan (1994), 68 Ohio St. 3d 590 -- Defendant and the driver of another car involved in an accident were both charged with aggravated vehicular homicide. The defendant was granted immunity to testify against the other driver. Writ of prohibition properly issued to bar prosecution for OMVI in another court.

State v. Kutz (1993), 87 Ohio App. 3d 329, 333-335 -- Driver charged with aggravated vehicular homicide was taken to a hospital where he refused to furnish a blood specimen, though a specimen was later obtained through the use of a search warrant. Court holds that under the implied consent law, the test results could not be used in an OMVI prosecution, however since the ban on use following refusal does not mention vehicular homicide, results may be used in such a prosecution.

State v. Scheurell (1986), 33 Ohio App. 3d 217 -- Headnote: "In order for the trier of facts to consider evidence of a chemical test resulting in a concentration of alcohol less than the presumptive level called for by R.C. 2903.07 (vehicular homicide), expert testimony is required to explain the significance of the test results."

In re Vermatten (1996), 116 Ohio App. 3d 639, 641 -- Tort law negligence only requires a showing of a failure to exercise ordinary care. Criminal negligence, according to R.C. 2901.22(D), requires a substantial lapse from due care which causes the defendant to fail to perceive or avoid a risk that his conduct may cause a certain result or be of a certain nature. Court reverses vehicular homicide conviction concluded to have been based on speculation that the defendant had fallen asleep at the wheel.

State v. Vaught (1978), 56 Ohio App. 2d 93 -- Vehicular homicide conviction reversed for failure to prove negligence where proof of speed was uncertain and witness didn't see yellow light until struck pedestrian's body was in the air.

Cleveland v. Pellech (1983), 8 Ohio Misc. 2d 37 -- Headnote 1: "The contributory negligence of the decedent is not a defense to a charge of vehicular homicide...unless it is the sole proximate cause of the accident."

State v. Newton (1985), 23 Ohio App. 3d 184 -- Negligence may arise from condition of vehicle as well as manner of operation. Load of rolled steel had not been not adequately secured to flatbed truck.

State v. Gates (1983), 10 Ohio App. 3d 265 -- Recklessness may arise from defendant's disregard of his own intoxication. Also see State v. Stinson (1984), 21 Ohio App. 3d 14.

State v. Mitchell (1990), 67 Ohio App. 3d 123 -- Evidence that victim was not wearing a seatbelt found irrelevant.

State v. Long (1983), 7 Ohio App. 3d 248 -- OMVI is not a lesser included offense to aggravated vehicular homicide.

State v. Borchardt (1997), 118 Ohio App. 3d 857 -- A court may not permanently revoke a driver's license upon conviction for vehicular homicide unless the offender was under the influence of drugs or alcohol. Compare State v. Tardif (2000), 139 Ohio 38, which refuses to follow Borchardt.

State v. Rowe (1997), 118 Ohio App. 3d 121 -- Trial court was without authority to restore driving privileges to defendant convicted of aggravated vehicular homicide while under the influence, which carries a mandatory permanent drivers license revocation.

State v. Mahoney (1986), 34 Ohio App. 3d 114 -- Multiple deaths arising from a single incident may result in multiple convictions for vehicular homicide, and in turn, consecutive sentences and license suspensions. Also see State v. Stimson (1985), 28 Ohio App. 3d 69; State v. Jones (1985), 18 Ohio St. 3d 116; State v. Caudill (1983), 11 Ohio App. 3d 252.

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Trial Procedure

Deck v. Missouri (1995), 125 S.Ct. 2007 -- Due process forbids the routine use of restraints at the penalty phase of a capital trial. Use of visible restraints requires justification specifically related to the particular defendant on trial. The defendant need not prove prejudice. Instead the state must prove beyond a reasonable doubt that shackling did not contribute to the verdict obtained.

State v. Parker, 95 Ohio St. 3d 524, 2002-Ohio-2833 -- Syllabus: "A defendant charged with a crime punishable by death who has waived his right to trial by jury must, pursuant to R.C. 2945.06 and Crim. R. 11(C)(3), have his case heard and decided by a three-judge panel even if the state agrees that it will not seek the death penalty." State ex rel. Henry v. McMonagle, 87 Ohio St. 3d 543, 2000-Ohio-477, distinguished as there the indictment had been amended to delete the death penalty specifications.

State v. Turner, 105 Ohio St. 3d 331, 2005-Ohio-1938, ¶36-42 -- While witnesses are required when there is a guilty plea to capital murder, and not merely a statement by the prosecutor, a stipulation may take the place of live testimony. State v. Green (1998), 81 Ohio St. 3d 100, distinguished.

State v. Carley (2000), 139 Ohio App. 3d 841 -- Plea before a three-judge panel in a death penalty case was defective in written waiver of the right to jury trial was not entered though death specifications remained a part of the indictment.

Pratts v. Hurley, 102 Ohio St. 3d 81, 2004-Ohio-1980 -- Syllabus "The failure of a court to convene a three-judge panel, as required by R.C. 2945.06, does not constitute a lack of subject-matter jurisdiction that renders the trial court's judgment void ab initio and subject to collateral attack in habeas corpus. It constitutes an error in the court's exercise of jurisdiction that must be raised on direct appeal." It was error for a single judge to enter a plea in a capital case before a single judge, but that error was waived by the failure to appeal. Also see State ex rel. Rash v. Jackson, 102 Ohio St. 3d 145, 2004-Ohio-2053; Kelley v. Wilson, 103 Ohio St. 3d 201, 2004-Ohio-4883.

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Juveniles

State v. Harwell, 102 Ohio St. 3d 128, 2004-Ohio-2149 -- A juvenile bound over for trial as an adult charged with aggravated murder with death penalty specifications is charged with a capital offense. Though he is not eligible for the death penalty, he is entitled to the benefit of capital sentencing guidelines.

State v. Koger, 151 Ohio App. 3d 534, 2003-Ohio-576 -- A juvenile bound over for trial as an adult, and indicted for aggravated murder with specifications, upon waiver of the right to jury trial is entitled to trial by a three-judge panel, even though he is not eligible for the death penalty. Dissenting judge would limit State v. Parker 95 Ohio St. 3d 524, 2002-Ohio-2833, to adult defendants.

State v. Harwell, 149 Ohio Appellate 3d 147, 2002-Ohio-4349 -- A juvenile being tried for capital murder is entitled to the full rights of other capital defendants. It was reversible error for the three judge panel to allow members of the victim's family to make a recommendation as to sentence. It was not error to allow more than one family member to provide victim impact statements. It was error, but not plain error, for the panel to allow a family member to directly address the defendant. It was reversible error for the panel to weigh the facts and circumstances of the crime as aggravating circumstances to be weighed against mitigation factors.

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Instructions

State v. Griffin, 175 Ohio App. 3d 325, 2008-Ohio-702 – Defendant was charged with felony murder pursuant to R.C. 2903.02(B) and voluntary manslaughter. Jury was erroneously instructed that he could be found guilty of both, since voluntary manslaughter is an offense of lesser degree to felony murder. Omission of instructions on the mitigating element differentiating the offense was error as well. If the indictment is for voluntary manslaughter, the mitigating factor is presumed, but this is not the case when the indictment includes both offenses. State v. Duncan, 154 Ohio App. 3d 254, 2003-Ohio-4695, applied.

Smith v. Spisak (2010), 130 S.Ct. 676 – Applying AEDPA the Supreme Court reverses he Sixth Circuit’s interpretation that the jury instructions and verdict forms were contrary to Mills v. Maryland in that they required unanimity as to the presence of a mitigating factor. Even if counsel was ineffective in closing argument there was no reasonable probability a better argument would have led to a better outcome. Also see Bobby v. Mitts (2011), 131 S.Ct. 1762.

Shafer v. South Carolina (2001), 121 S.Ct. 1263 -- When future dangerousness is under consideration by the sentencing jury in a capital case, due process requires the jury be informed that life without parole means exactly that. For discussion of when future dangerousness is placed at issue see Kelly v. South Carolina  (2002), 122 S.Ct. 726.

State v. Mays, 161 Ohio App. 3d 175, 2005-Ohio-2609 -- Plain error found in additional instructions to jurors after they handed up a verdict finding the defendant guilty of felonious assault without considering aggravated assault. Aggravated assault is an offense of lesser degree and not a lesser included offense. It is not an offense to be considered only if the jury concludes the elements of felonious assault were not proven. Error also extends to the related felony-murder count, as that was premised on commission of a first or second degree felony. Vague indictment also faulted for not expressing which counts were premised on beating an elderly man with a digital camera and which on poisoning him with antifreeze.

State v. Smith, Franklin App. No. 04AP-189, 2004-Ohio-6608 -- Instructions and argument by the prosecutor to the effect that self-defense did not apply to the lesser-included offense of voluntary manslaughter denied the defendant his constitutional right to present a complete defense to a properly instructed jury. Defendant was also entitled to the "Peacock" instruction found in 4 OJI (2003) 411.31(4), which delineates the right of a defendant attacked in his own home to use such force as necessary, including deadly force, to repel an assailant from the home. The defendant was not under a duty of retreat, here to remain in the bedroom where he went to retrieve a gun. Plain error reversal on both assignments of error.

State v. Smith, 168 Ohio App. 3d 141, 2006-Ohio-3720, ¶43-66 -- An instruction on the mitigating factor of sudden rage is warranted when a reasonable juror could conclude a crime was committed in such a manner. Such an instruction may be given even when self defense is claimed. Defendant's claim he was not in an uncontrollable rage at least initially in an encounter may be discounted depending on ho matters evolved.

Hopkins v. Reeves (1998), 524 U.S. 88 -- State courts in capital murder cases are not required to instruct on lesser included offenses unless under state law an offense is a lesser included to capital murder. Under Nebraska law, there are no lesser included offenses to felony murder. Beck v. Alabama (1980), 447 U.S. 625 is distinguished on the basis that Alabama law prohibited instructions on lessers in capital cases, but not in non-capital murder cases.

Clark v. Jago (6th Cir. 1982), 676 F. 2d 1099 -- In an aggravated murder prosecution premised on felony murder, instructions must state that the defendant, charged as an aider and abettor, need be proven to have had an intent to kill. Also see State v. Mabry (1982), 5 Ohio App. 3d 13.

State v. Benge (1996), 75 Ohio St. 3d 136, 139-140 -- It was error to instruct the jury not to consider voluntary manslaughter if they agreed all the elements of aggravated murder had been proven. However, since counsel failed to object, and there was little evidence in support of the mitigating factor, the court refuses to reverse as plain error.

State v. Hill (1996), 108 Ohio App. 3d 279 -- While the court properly gave instructions on voluntary manslaughter over defense objection, it was error to do so using language stating that the defendant was "asserting this voluntary manslaughter defense as an inferior degree to the crime of murder." Defense had claimed self-defense, and the language used suggested that the defendant would settle for voluntary manslaughter.

State v. Campbell (1991), 74 Ohio App. 3d 352 -- Striking victim on back of head with a baseball bat required instruction on voluntary manslaughter premised on underlying offense of felonious assault, as well as on murder.

State v. Shane (1992), 63 Ohio St. 3d 630 -- Syllabus: "(1) Before giving a jury instruction on voluntary manslaughter in a murder case, the trial judge must determine whether evidence of reasonably sufficient provocation occasioned by the victim has been presented to warrant such an instruction. (2) Words alone will not constitute reasonably sufficient provocation to incite the use of deadly force in most situations."

State v. Cornett (1992), 82 Ohio App. 3d 624 -- Instruction on voluntary manslaughter not always required where defendant has found his wife in bed with another man. Here, defendant's testimony indicated opportunity to cool off and included claim shooting was accidental.

State v. Collins (1994), 97 Ohio App. 3d 438 -- Instructions on voluntary manslaughter were not required where none of the testimony offered at trial supported the mitigating factor set forth in the statute.

State v. Neal (February 14, 1995), Franklin Co. App. No. 94APA08-1118, unreported (1995 Opinions 1118) -- Victim in a case resulting in an involuntary manslaughter conviction was punched in the stomach by the defendant and later fell down a flight of steps. Cause of death was internal bleeding. Court should have instructed on the lesser included offense of simple assault as the jury could reasonably have concluded that death was not proximately caused by the punches. The injury which caused the bleeding could have been cause by the fall. (Facts also permit the inference that death was proximately caused by medical malpractice.)

State v. Brooks (1996), 75 Ohio St. 3d 148, 159-162 -- It was error to instruct the jury at the penalty phase of a death penalty trial "You are now required to determine unanimously that the death penalty is inappropriate before you can consider a life sentence." App. 162: "In Ohio, a solitary juror may prevent a death penalty recommendation by finding that the aggravating circumstances in the case do not outweigh the mitigating factors. Jurors from this point forward should be so instructed." See State v. Brooks (1997), 118 Ohio App. 3d 444 for what happened next in this case.

State v. Stoudemire (1997), 118 Ohio App. 3d 752, 760 -- An instruction on causal relationship based on foreseeability is not advisable in murder, where purpose is the culpable mental state.

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Penalty phase issues

State v. Diar, 120 Ohio St. 3d 460, 2008-Ohio-6266 – Contrary to State v. Brooks (1996), 75 Ohio St. 3d 148, the court failed to instruct the jurors in a capital case that a solitary juror may prevent a death penalty recommendation by finding he aggravating circumstances do not outweigh the mitigating factors. While this omission has not led to reversal in other cases, the court accepts the state‘s concession of error.

Ring v. Arizona (2002), 122 S.Ct. 2428 -- Arizona's scheme whereby a jury determines guilt and a judge determines whether to impose the death penalty violates the Sixth Amendment right to jury trial. Apprendi v. New Jersey (2000), 530 U.S. 466, applied. Walton v. Arizona (1990), 497 U.S. 639, overruled.

Schriro v. Summerlin (2004), 124 S.Ct. 2519 -- Ring is procedural, not substantive, and does not apply retroactively.

State v. Hancock, 108 Ohio St. 3d 57, 2006-Ohio-160 -- Judge thought the jury was improperly given guilt phase exhibits during penalty phase, declared a mistrial with respect to the penalty phase, and imposed a life sentence. Prosecutor sought leave to appeal and appeals court found error. Judge proceeded to follow the jury's recommendation of death. Supreme Court finds the judge's view on admissibility of the exhibits was within his discretion. Since the jury's verdict was tainted by having been given the exhibits, the death sentence is vacated. Since there is nothing in the case amounting to acquittal with regard to the death penalty, the case is remanded for a new trial as to the penalty phase.

State v. Gross, 97 Ohio St. 3d 121, 2002-Ohio-5524, ¶ 122-140 -- Misconduct by alternate jurors present during penalty phase deliberations leads to reversal. Once the defendant objects to the presence of alternates during deliberations, the state has the burden of demonstrating an absence of prejudice. Indicia of misconduct creates a presumption of prejudice. Reversal is required unless the court cures the error or the prosecutor shows it to be harmless. A routine poll of the jury is not sufficient. The remedy is a resentencing, not retrial. See concurring and dissenting opinions.

State v. Williams, 103 Ohio St. 3d 112, 2004-Ohio-4747 -- Prior to October 16, 1996 reversal due to penalty phase errors did not permit impaneling a new jury to reconsider imposition of the death sentence. Amendment of R.C. 2929.06(B) to now permit doing so applies only prospectively. Court declines invitation to hold State v. Penix (1987), 32 Ohio St. 3d 369 was erroneously decided.

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Mitigation

Sears v. Upton (2010), 130 S.Ct. 3259 – In state postconviction the state conceded defense counsel’s penalty phase investigation was constitutionally deficient: He focused on impact on family members, missing an abusive home environment, brain abnormality, low functioning and other factors. The state court nonetheless rejected the claim, summarily stating it was unable to measure prejudice. Remanded. The state court failed to meet its obligation under Strickland. The court should take all that is now known and weigh the likelihood of a different outcome had this information been provided to the jury.

State v. Barton, 108 Ohio St. 3d 402, 2006-Ohio-1324 -- Syllabus: "(1) In a capital case, when a defendant waives all mitigating evidence, a trial court must conduct an inquiry of the defendant on the record to determine whether the waiver is knowing and voluntary. (State v. Ashworth (1999), 85 Ohio St. 3d 56, 706 N.E.2d 1231, approved but held inapplicable.) (2) Presentation of any mitigating evidence during either the guilt phase or the penalty phase of a capital-murder trial relieves the trial court of the duty to conduct an Ashworth inquiry. (3) Only a waiver of all mitigating evidence during the guilt phase and the penalty phase of a capital-murder trial triggers the trial court's duty to inquire as to whether the waiver is knowingly and voluntarily made." Case involved some mitigating testimony during the guilt phase and an unsworn statement at the penalty phase asking for a death verdict. See dissenting opinions.

State v. Tenace, 109 Ohio St. 3d 255, 2006-Ohio-2417 -- Horrific childhood persuades majority the that the death sentence should be vacated.

Brown v. Sanders (2006), 126 S.Ct. 884 -- California inmate was found guilty of four special circumstances, two of which were later invalidated on appeal. The question is whether or not the death sentence may stand. The Court distinguishes between weighing and non-weighing states with regard to aggravating factors, determining California is a non-weighing state. Since the two remaining aggravators satisfy Furman's narrowing requirement, and the facts and circumstances with respect to the invalidated aggravators may properly be considered under a circumstances of the crime factor, the sentence stands.

Oregon v. Guzek (2006), 546 U.S. 517 -- Capital defendant was back for the third time for a new sentencing hearing. He wanted his mother to offer live testimony as to alibi. Though state law allowed introduction of transcripts of her testimony in this regard, the federal constitution does not prohibit a state from limiting innocence-related evidence a capital defendant may introduce at a sentencing proceeding to such evidence introduced at the original trial.

State v. Lynch, 98 Ohio St. 3d 514, 2003-Ohio-2284 -- (1) Syllabus: "A trial court may, in its discretion, permit a capital defendant to make an unsworn statement under R.C. 2929.03(D)(1) using a question-and-answer format." Issues discussed at ¶ 97-111 include the interrelationship between the right to allocution and unsworn statements and the advantage of using question-and-answer format when the defendant is of low intelligence. (2) ¶ 114: Information about further sentencing for companion noncapital offenses is not a mitigating factor." Simmons v. North Carolina (1994), 512 U.S. 154, distinguished.

State v. McKnight, 107 Ohio St. 3d 101, 2005-Ohio-6046, ¶243-253 -- The trial court excluded testimony by members of the victim's family opposing imposition of the death penalty. Such testimony is deemed not to fall within R.C. 2929.04(B)(7) because it is not relevant.

Williams v. Taylor (2000), 120 U.S. 1495 -- Ineffective assistance of counsel found where defense counsel failed to investigate and to present substantial mitigating evidence to the sentencing jury. Also see Wiggins v. Smith (2003), 123 S.Ct. 2527 reaching the same conclusion in an AEDPA case. State court's conclusion to the contrary was an unreasonable application of Strickland. Compare Schriro v. Landrigan (2007), 127 S.Ct. 1933.

Rompilla v. Beard (2005), 545 U.S.___, 125 S.Ct. 2456 -- Trial counsel relied on the defendant's claim he had had an ordinary upbringing and failed to review the file from a former prosecution which would have disclosed a troubled childhood, mental illness and alcoholism. State court's determination counsel was not ineffective was an unreasonable application of Strickland. Viewing the facts as the defense lawyer would have at the time, knowing the prosecutor would use material from the file, it should have been reviewed. This would have disclosed leads to further investigation in preparation for the penalty phase of a capital trial.

Abdul-Kabir v. Quarterman (2007), 127 S.Ct. 1654 -- Texas special issues questions concerning the deliberateness of the defendant's conduct and whether he posed a continuing threat to society did not permit meaningful consideration of constitutionally relevant mitigating evidence, here neurological impairment and childhood neglect and abandonment. Also see Brewer v. Quarterman (2007), 127 S.Ct. 1706; Smith v. Texas (2007), 127 S.Ct. 1686 (effect of nullification instruction).

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Verdicts

Sattazahn v. Pennsylvania (2003), 123 S.Ct. 732 -- Under Pennsylvania law, if the jury is deadlocked at the sentencing phase of a death penalty trial, the judge must impose a life sentence. Because this does not have the effect of an acquittal as to the death penalty, if there is a reversal based on error at the guilt phase, the defendant may face the death penalty at the retrial. Majority finds no double jeopardy or due process violation.

Kansas v. Marsh (2006), 126 S.Ct. 2516 -- Kansas statute calling for imposition of the death penalty when aggravating and mitigating circumstances are in equipoise does not violate the federal constitution. Kansas Supreme Court conclusion to the contrary does not stand as it rested on federal law and not independent state grounds.

State v. Lomax, 96 Ohio St. 3d 318, 2002-Ohio-4453 -- Death penalty case was tried to a three judge panel which found the defendant not guilty of a prior calculation and design count, but guilty of a felony murder count and a 2929.04(A)(7) specification. The specification failed to allege that the defendant was the principal offender in the commission of the predicate felony. Since the panel had found the defendant not guilty of the prior calculation and design count, appellant was not convicted of a death-eligible offense. Held that the prosecutor was not entitled to appeal the denial of a post-verdict motion to amend the indictment either as a matter of right or by leave of court. Doing so amounted to a collateral attack on the verdict. The trial court's ruling was not a dismissal of all or part of the indictment. Instead it was a ruling based on the language contained in the indictment.

State v. Duncan, 154 Ohio App. 3d 254, 2003-Ohio-4695 -- Guilty verdicts on felony murder, murder and voluntary manslaughter are inconsistent and must be reversed. Double jeopardy does not bar retrial on all charges. Nor does collateral estoppel. Court characterizes conviction on both as an error in instructions. Supreme Court declined further review. Better view is that conviction should have been entered on voluntary manslaughter as (1) it was proper to instruct the jury on all charges to be considered independently, (2) since purpose includes knowledge, the culpable mental state for voluntary manslaughter, the verdicts are not inconsistent, and (3) the finding on provocation settled that issue and precludes relitigation.

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Sentencing issues

State v. Short, 129 Ohio St. 3d 360, 2011-Ohio-3641, ¶39-90 – Defendant killed his estranged wife and her paramour. At trial he waived making any presentation at the penalty phase, but wanted to offer mitigation before the judge rendered a decision. In accordance with State v. Ashworth (1999), 85 Ohio St. 3d 56 the defendant was evaluated for competency to make such a waiver, but apparently the colloquy did not meet Ashworth’s standards. Court finds an Ashworth inquiry was not required since the defense had presented mitigation evidence during the guilt phase. Court further refuses to overrule State v. Roe (1989), 41 Ohio St. 3d 18, which held mitigating evidence must be presented to the jury, and cannot be withheld for presentation to the judge alone. Court refuses to construe R.C. 2929.19(A)(1) to allow such presentation. Nor does the right to allocution under Crim. R. 32(A) allow presentations by individuals other than the defendant.

State v. Were, 118 Ohio St. 3d 448, 2008-Ohio-2762, ¶184-186 – Apprendi claim rejected as to whether the judge or jury is to determine retardation in a capital case.

State v. Jackson, 190 Ohio App. 3d 319, 2010-Ohio-5054R.C. 2929.03(F) contemplates the trial judge will personally draft the death sentence opinion. In this case, after it had been through direct appeal and postconviction, it was ascertained the judge had the ex parte assistance of the prosecutor in drafting the opinion. This came out during the appeal in the codefendant’s case, culminating in reversal in State v. Roberts, 110 Ohio St. 3d 71, 2006-Ohio-3665. Remanded for resentencing.

State v. Melhado, Franklin App. No. 02AP-458, 2003-Ohio-4763 -- If the jury recommends death, the judge may elect to impose any of the life sentences, but if the recommendation is life without parole, only that sentence may be imposed. No equal protection violation found.

State v. Hollingsworth (2001), 143 Ohio App. 3d 652 -- A three judge panel determining the sentence in a capital case is governed by the specific statutes concerning aggravated murder, and not the statutes controlling sentencing in other felony cases.

State v. Roberts, 110 Ohio St. 3d 71, 2006-Ohio-3665, ¶153-164 -- Defense counsel noticed the prosecutor appeared to be reading along as the sentencing opinion was read from the bench in a capital case. It was acknowledged the judge had sought the prosecutor's assistance in preparing the opinion. Such ex parte communication was unethical for both the judge and the prosecutor. The error can not be cured by the Supreme Court's independent review. Remanded for the defendant to be afforded allocution and the preparation of a new opinion.

State v. Green (2000), 90 Ohio St. 3d 352, 360-364 -- Though deficiencies in a trial court's sentencing opinion in a death penalty case may often be corrected by appellate reweighing, collective deficiencies undermining confidence in the decision warrant remand. Case was tried to a three-judge panel.

State v. Sprowls, Lake App. No. 2003-L-056, 2004-Ohio-6328 -- Defendant was convicted of involuntary manslaughter. Judge imposed the maximum sentence reasoning the defendant's acts fell just short of murder, making it the worst form of the offense. Reversed as this reasoning improperly nullifies the jury's finding the defendant acted under the influence of sudden passion or in a sudden fit of rage provoked by the victim. Blakely claim may be considered on remand.

State v. Porterfield, 106 Ohio App. 3d 5, 2005-Ohio-3095 -- When consecutive life sentences are imposed, review of that decision is not precluded under R.C. 2953.08(D), unless those sentences have been jointly agreed upon and stipulated to be justified.

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Merger

State v. Johnson, 128 Ohio St. 3d 153, 2010-Ohio-6314 – Syllabus: “When determining whether two offenses are allied offenses of similar import subject to merger pursuant to R.C. 2941.25, the conduct of the accused must be considered. (State v. Rance (1999), 85 Ohio St. 3d 632, 710 N.E. 2d 699, overruled.)” Methodology for analysis set forth at ¶46-52. Court concludes that in this case the offenses of child endangerment and felony murder merged. ¶56: “We decline the invitation of the state to parse Johnson’s conduct into a blow-by-blow in order to sustain multiple convictions for the second beating.”

State v. Lanier, 192 Ohio App. 3d 762, 2011-Ohio-898 – Counts of attempted murder, felonious assault based on infliction of serious physical harm, and felonious assault premised on the use of a firearm, may all be based on the same conduct, and merge when committed as a single act with a single state of mind. Offenses here merge even though multiple shots were fired.

State v. Marshall, 175 Ohio App. 3d 488, 2008-Ohio-955, ¶76-83 – Murder and involuntary manslaughter merge as one is a lesser included offense to the other. Same applies to possession and trafficking in the same drug.

State v. Lanier, 180 Ohio App. 3d 376, 2008-Ohio-6906 – Attempted murder and felonious assault premised of causing or attempting to cause physical harm by means of a deadly weapon are allied offenses of similar import. But felonious assault premised on serious physical harm and attempted murder are not. Compare State v. Sutton, Cuyahoga App. No. 90172, 2008-Ohio-3677, ¶88-93.

State v. Roberts, 180 Ohio App. 3d 666, 2009-Ohio-298 – Felonious assault and attempted murder were committed with a separate animus where the defendant began stabbing his girlfriend with a steak knife, but then changed to a kitchen knife.

State v. Johnson, 195 Ohio App. 3d 59, 2011-Ohio-3143, ¶76-80 – Felonious assault and felony murder premised on that same assault merge.

State v. Church, 161 Ohio App. 3d 589, 2005-Ohio-2984 -- While holding to district precedent that attempted murder and felonious assault do not merge, even when there has been a single shot, two of three judges suggest the case should go to the Supreme Court as a certified conflict.

State v. Lynch, 98 Ohio St. 3d 514, 2003-Ohio-2284, ¶ 132 -- "Aggravated murder counts involving the same victim are to be merged for sentencing" (i.e. upon submission to the jury at the penalty phase). But see the following paragraphs regarding when this takes place.

State v. Rance (1999), 85 Ohio St. 3d 632 -- Paragraph two of the syllabus: "Involuntary manslaughter and aggravated robbery are not allied offenses of similar import."

State v. Johnson (1983), 6 Ohio St. 3d 420 -- Syllabus: "(1) Aggravated robbery, as defined by R.C. 2911.01, is an 'allied offense of similar import' to theft, as defined by R.C. 2913.02. (R.C. 2941.25[A], applied.) (2) The offenses of murder, R.C. 2903.02, and involuntary manslaughter, R.C. 2903.04, share the common element of causing the death of another and are distinguishable only by the offender's mental state. The prohibition against double jeopardy requires that in any one killing, the offender may be convicted of one or the other of the offenses but not both." Reversed on other grounds, Ohio v. Johnson (1984), 467 U.S. 493.

State v. Bickerstaff (1984), 10 Ohio St. 3d 62 -- Syllabus: "Aggravated murder, as defined in R.C. 2903.01, is not an allied offense of similar import to aggravated robbery, as defined in R.C. 2911.01, for purposes of R.C. 2941.25."

State v. Phillips (1991), 75 Ohio App. 3d 785 -- Shooting five people during a drive by shooting is five separate offenses.

State v. Jenkins (1984), 15 Ohio St. 3d 239, 197-198 -- When separate death penalty specifications are based on aggravated robbery and kidnapping, and those offenses would merge, the specifications should be merged to be considered as a single aggravating factor at the penalty phase of a capital trial. Compare State v. Rogers (1985), 17 Ohio St. 3d 174, 180-181 where the rape and kidnapping specifications did not merge.

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Execution

State v. Lang, 129 Ohio St. 3d 512, 2011-Ohio-4215 – After 48 pages and 342 paragraphs of detached and virtually unreadable text, the majority affirms. Little weight is given to the nineteen year old defendant‘s long history of psychiatric treatment and a two year period during which he was kept from returning from a visit to his father. Three justices join a concurring opinion calling for an end to executing those suffering extreme mental illness.

Baze v. Rees (2008), 128 S.Ct. 1520 – Use of a three drug cocktail in executions does not amount to cruel and unusual punishment. At 1529: "… (T)he United States Constitution does not demand the avoidance of all risk of pain in carrying out executions."

Scott v. Houk, 127 Ohio St. 3d 317, 2010-Ohio-5805 – In response to a certified question from Federal District Court, “There is no state postconviction relief or other state-law mode of action to litigate the issue of whether a specific lethal-injection protocol is constitutional under Baze v. Rees, 553 U.S. 35…”

State v. White, 118 Ohio St. 3d 12, 2008-Ohio-1623 -- In a post Atkins successive postconviction action both the prosecution and defense examiners concluded the defendant was ineligible for execution under the controlling standards. The court instead decided the defendant‘s has sufficient adaptive skills based on the testimony of his former girlfriend, whose mother was the homicide victim. At ¶74: "While the trial court is the trier of fact, it may not disregard credible and uncontradicted expert testimony in favor of either the perceptions of lay witnesses or of the court‘s own expectations of how a mentally retarded person would behave. Doing so shows an arbitrary, unreasonable attitude toward the evidence before the court and constitutes an abuse of discretion." Nor was there any indication that the onset of retardation came after age 18. For similar weighing in the context of determining competency see State v. Were, 118 Ohio St. 3d 448, 2008-Ohio-2762, ¶36-53.

Bobby v. Bies (2009), 129 S.Ct. 2145 – Death row inmate back in court in a post-Atkins postconviction action claimed double jeopardy and issue preclusion based on his retardation having been given some weight by reviewing courts in the past. Held that Ohio courts were not barred from conducting a full hearing on retardation. State is not trying to increase punishment. Nor was retardation in the past an issue of ultimate fact.

State v. Hill, 177 Ohio App. 3d 171, 2008-Ohio-3509 – While retardation was addressed at the penalty phase, determination at that time is not res judicata as to subsequent litigation of an Atkins claim. Trial court properly based finding appellant was not sufficiently retarded to avoid execution on evidences as to his adaptive skills.

Atkins v. Virginia (2002), 122 S.Ct. 2242 -- The execution of the mentally retarded violates the Eighth Amendment's ban on cruel and unusual punishments.

Roper v. Simmons (2005), 125 S.Ct. 1183 -- The execution of those who committed a homicide while under the age of eighteen violates the Eighth Amendment. Decision is based on indicia of a national consensus that such individuals are categorically less culpable that the average criminal.

Panetti v. Quarterman (2007), 127 S.Ct. 2842 -- To be competent for execution an inmate must have a rational understanding of the state's rationale for execution. Inmate understood he was to be executed but believed it was to stop him from preaching.

State v. Lott, 97 Ohio St. 3d 303, 2002-Ohio-6625 -- In order to implement Atkins v. Virginia (2002), 122 S.Ct. 2242, the trial court is to conduct a hearing to determine whether the defendant is mentally retarded. Since Atkins recognizes a new federal or state right that applies retroactively, a new postconviction petition is the avenue to relief. A three-part test is to be applied, looking to: (1) significantly subaverage intellectual functioning, (2) significant limitations in two or more adaptive skills, and (3) onset before age 18. The defendant must establish he is mentally retarded by a preponderance of the evidence. There is a rebuttable presumption that a defendant is not retarded is his IQ is above 70. Also see State v. Thomas, 97 Ohio St. 3d 309, 2002-Ohio-6624, ¶87-121. For a case on implementation and the need to conduct a hearing see State v. Carter, 157 Ohio App. 3d 689, 2004-Ohio-3372.

State v. Gumm, 169 Ohio App. 3d 650, 2006-Ohio-6451 -- Lott declares full scale IQ scores above 70 give rise to a rebuttable presumption that an inmate is not mentally retarded. Though the defendant's IQ was usually measured in the low 70s, his history of poor functioning through life established he was retarded. The trial court's conclusion was supported by reliable, credible and unrebutted evidence.

State v. Lynch, 98 Ohio St. 3d 514, 2003-Ohio-2284, ¶ 193 -- I.Q. of 72 doesn't make the Atkins cut.

State v. Bays, 159 Ohio App. 3d 469, 2005-Ohio-47 -- There is a significant difference between expert testimony offered for mitigation purposes and expert testimony offered for Atkins purposes. Although evidence adduced for mitigation purposes may be relevant, it was an abuse of discretion not to allocate funds for further evaluation. Also see State v. Hughbanks, 159 Ohio App. 3d 257, 2004-Ohio-6429.

State v. Ketterer, 111 Ohio St. 3d 70. 2006-Ohio-5283 -- Death penalty upheld despite thirty year history of mental illness. See concurring opinion which calls for reexamination of the execution of individuals with severe mental illness.

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Other issues

State v. Davis, Slip Opinion No. 2011-Ohio-5028 -- Syllabus: “(1) Pursuant to Sections 2(B)(2)(c) and 3(B)(2), Article IV of the Ohio Constitution, a court of appeals has jurisdiction, in a case in which a death penalty has been imposed, to consider the appeal of a trial court’s denial of a motion for a new trial based on newly discovered evidence. (2) A trial court has jurisdiction to decide a motion for a new trial based on newly discovered evidence in a case in which the death penalty has been affirmed on appeal.”

State v. Clinkscale, 122 Ohio St. 3d 351, 2009-Ohio-2746, ¶11 – Case remains a capital case even though the defendant had avoided the death penalty at a previous trial.

State v. Dean, 127 Ohio St. 3d 140, 2010-Ohio-5070 – In a capital case the Supreme Court sustains propositions of law maintaining the defendant was denied his right to self representation and that the judge was biased against him and his attorneys. State did not want to provide the address of a witness and utilized Crim. R. 16(B)(1)(e). Trial judge presided at the hearing, but contrary to State v. Gillard (1988), 40 Ohio St. 3d 226, refused to recuse himself. An unsuccessful effort to have the judge disqualified led to hostility, and threats to find trial counsel in contempt. The defendant wanted to represent himself, but was not allowed to do so because he said he was coerced to make that request. After the defendant was sentenced to death the judge fined counsel $2,000 each.

State v. Dean, 187 Ohio App. 3d 495, 2010-Ohio-1684 – Following imposition of a death sentence the state public defender was appointed to represent the defendant in a postconviction action. After the petition had been filed the defendant wrote to the judge asking that postconviction proceedings be terminated. The P.D. sought a competency evaluation before ruling on this request. The judge agreed with the prosecutor that a colloquy was enough. During this exchange the defendant cited the court’s mistreatment of his trial attorneys as a reason. Competency evaluation was required. Judge’s conduct led to reversal in direct appeal of the conviction. See State v. Dean, 127 Ohio St. 3d 140, 2010-Ohio-5070.

State v. Hunter, 131 Ohio St. 3d 67, 2011-Ohio-6524, ¶99-100 – Retained counsel in capital cases do not have to be Rule 20 certified.

State v. Treesh (2001), 90 Ohio St. 3d 460, 492-493 -- Since State v. McGuire (1997), 80 Ohio St. 3d 390 applies retroactively, residual doubt need not be considered by the Supreme Court in its independent review, even though it was the subject of jury instructions at the penalty phase.

Pratts v. Hurley, 102 Ohio St. 3d 81, 2004-Ohio-1980 -- Syllabus" "The failure of a court to convene a three-judge panel, as required by R.C. 2945.06, does not constitute a lack of subject-matter jurisdiction that renders the trial court's judgment void ab initio and subject to collateral attack in habeas corpus. It constitutes an error in the court's exercise of jurisdiction that must be raised on direct appeal." It was error for a single judge to enter a plea in a capital case before a single judge, but that error was waived by the failure to appeal. Also see State ex rel. Rash v. Jackson, 102 Ohio St. 3d 145, 2004-Ohio-2053; Kelley v. Wilson, 103 Ohio St. 3d 201, 2004-Ohio-4883.

In re J.A.P., Montgomery App. No. 20058, 2004-Ohio-3918 -- Juvenile entered an admission to negligent assault. Subsequently the victim died and he was charged with negligent homicide. Charge was improperly dismissed. State v. Carpenter (1993), 68 Ohio St. 3d 59 distinguished on the basis that case involved a negotiated plea.

State v. Smith (1997), 80 Ohio St. 3d 89 -- Syllabus: "(1) The amendments to Section 2(B)(1), Article IV, Ohio Constitution, and the implementing statute, R.C. 2953.02, are constitutional. (2) The courts of appeals shall not accept jurisdiction of any case in which the sentence of death has been imposed for an offense committed on or after January 1, 1995. Appeals in such cases shall be made directly from the trial court to the Supreme Court of Ohio." At p. 115: Felony murder and murder to escape detection specifications properly merged, but multiple murder specification should have remained a separate aggravating circumstance for the jury to consider at the penalty phase.

State v. Wogenstahl (1996), 75 Ohio St. 3d 344 -- Paragraph two of the syllabus: "It is improper for prosecutors at the penalty phase of a capital trial to make any comment before a jury that the nature and circumstances of the offense are 'aggravating circumstances.'" See p. 356 for clarification of State v. Gumm (1995), 73 Ohio St. 3d 413.

State v. Haight (1994), 98 Ohio App. 3d 639 -- Death penalty conviction reversed based on ineffective assistance of counsel at the guilt phase, lack of knowing and intelligent waiver of jury trial, and improper weighing of aggravating and mitigating factor.

State v. McGuire (1997) 80 Ohio St. 3d 390 -- (1) Syllabus: "Residual doubt is not an acceptable mitigating factor under R.C. 2929.04(B), since it is irrelevant to the issue of whether the defendant should be sentenced to death." See discussion at 402-404 and dissent. Also see State v. Green (2000), 90 Ohio St. 3d 352, 360-364. This may be the Court's most reckless decision since Lockett. Lingering doubt and difficult upbringing have been the mitigating factors most persuasive for juries. Both have been routinely accepted under (A)(7). The other six categories of mitigation are seldom as persuasive. Consideration of lingering doubt is also properly a part of assigning weight to the aggravating factors, which must be weighed against mitigating circumstances. (2) At 399: The hiring of a mitigation specialist in a death penalty case is not a requirement of effective assistance.

State v. Haney (1991), 70 Ohio App. 3d 135 -- Court did not abuse its discretion by denying expungement to defendant found not guilty by reason of insanity of murder.

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