State v. Shearer ( 2018 )

[Cite as State v. Shearer, 2018-Ohio-1688.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
CASE NO. CA2017-07-102
Plaintiff-Appellee, :
OPINION
: 4/30/2018
- vs –
:
DAWN RACHEL SHEARER, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2017-03-0367
Michael T. Gmoser, Butler County Prosecuting Attorney, Willa Concannon, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee
Mary K. Martin, 4600 Duke Dr., Suite 101, Mason, Ohio 45040, for defendant-appellant
S. POWELL, P.J.
{¶ 1} Defendant-appellant, Dawn Rachel Shearer ("Shearer"), appeals from her
conviction in the Butler County Court of Common Pleas after a jury found her guilty of
murdering her ex-husband, Anthony Shearer ("Tony"). For the reasons outlined below, we
affirm.
The Arrest of Shearer
{¶ 2} On the evening of February 6, 2017, Shearer was arrested for the murder of
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Tony and transported to the Butler County Jail. Once there, Shearer confessed to
detectives to shooting Tony in the head. Two days later, on February 8, 2017, Shearer
appeared at her arraignment and entered a plea of not guilty. Thereafter, on March 3, 2017,
a preliminary hearing was held before the Middletown Municipal Court. Following this
hearing, the matter was bound over to the Butler County Grand Jury and bond was set at
$250,000. It is undisputed that Shearer did not post bond, thereby remaining in the Butler
County Jail at all times relevant.
The Indictment and Pretrial Proceedings
{¶ 3} On April 5, 2017, the Butler County Grand Jury returned a four-count
indictment charging Shearer with two counts of murder in violation of R.C. 2903.02(B), both
unclassified felonies, as well as two counts of felonious assault in violation of R.C.
2903.11(A)(1) and (2), both second-degree felonies. Each of the four counts also included
a firearm specification as provided by R.C. 2941.145. According to the bill of particulars,
the charges arose after it was alleged Shearer shot and killed Tony on the evening of
February 6, 2017 while the two were at the house located at 3601 Ellis Way, Middletown,
Butler County, Ohio. The matter was subsequently scheduled for trial on April 24, 2017.
{¶ 4} On April 13, 2017, Shearer filed a motion requesting the matter be tried to a
jury. That same day, Shearer's trial counsel filed a notice indicating his intent to use experts
at trial, including, among others, Dr. Kenneth Manges, a forensic psychologist, and Dr.
Harry Plotnick, a forensic toxicologist. Later that day, the trial court issued an entry granting
Dr. Manges access to Shearer while she was in the Butler County Jail for purposes of
conducting a forensic interview "so that he may have the opportunity [to] testify in her trial
as an expert witness." Shortly thereafter, on April 17, 2017, Shearer's trial counsel provided
the state with a report Dr. Manges compiled following his interview with Shearer. It is
undisputed, however, that the report submitted by Dr. Manges specifically stated the
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"interview and evaluation process [was] not complete."
{¶ 5} Beginning on April 14, 2017, the state filed a series of motions requesting the
trial court exclude from trial any evidence regarding battered-woman's syndrome and
posttraumatic stress disorder, as well as any evidence regarding Shearer's own mental
health and/or diminished capacity. The state also moved the trial court to prohibit both Dr.
Manges and Dr. Plotnick from testifying at trial since Shearer failed to comply with the timing
requirements of Crim.R. 16(K). Pursuant to that rule,
An expert witness for either side shall prepare a written report
summarizing the expert witness's testimony, findings, analysis,
conclusions, or opinion, and shall include a summary of the
expert's qualifications. The written report and summary of
qualifications shall be subject to disclosure under this rule no
later than twenty-one days prior to trial, which period may be
modified by the court for good cause shown, which does not
prejudice any other party. Failure to disclose the written report
to opposing counsel shall preclude the expert's testimony at
trial.
{¶ 6} On April 20, 2017, the trial court held a pretrial hearing on the matter. As part
of this hearing, the trial court heard arguments from both parties as to whether Dr. Manges
and/or Dr. Plotnick would be permitted to testify since Shearer had admittedly not complied
with the timing requirements of Crim.R. 16(K). When confronted with this issue, Shearer's
trial counsel argued that he had done "everything possible" to comply with Crim.R. 16(K),
but that Shearer was now stuck with the decision of whether she should waive her right to
a speedy trial or forfeit her ability to call Dr. Manges and/or Dr. Plotnick to testify at trial. To
this, the trial court stated:
[T]he Court understands that [Shearer] wishes to exercise her
right to a speedy trial and has attempted to protect that by
setting the trial for Monday, April the 24th. However, the Court
will also extend to you the opportunity to request a continuance
if you feel that you're prejudiced to the point where you need
additional time to prepare. The Court could try this case in mid-
June if you would like, but that's up to you and [Shearer]. So I
don't – just put that on the record that the Court would entertain
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a motion to continue the trial if you believe it is necessary so that
you can adequately prepare your client's case.
Shearer's trial counsel initially declined the trial court's invitation, but noted that he would
need to speak with Shearer before any final determination could be made.
{¶ 7} Following this exchange, the trial court determined that Dr. Plotnick would not
be permitted to testify at trial due to Shearer's failure to comply with Crim.R. 16(K).
Similarly, as it relates to Dr. Manges, who the record indicates was prepared to offer his
expert opinion on battered-woman's syndrome and posttraumatic stress disorder, the trial
court determined he too would not be permitted to testify at trial. However, instead of
excluding Dr. Manges' testimony based on a violation of Crim.R. 16(K), the trial court
instead based its ruling on the Ohio Supreme Court's decision in State v. Goff, 128 Ohio
St.3d 169, 2010-Ohio-6317, which held:
[W]hen a defendant demonstrates an intention to use expert
testimony from a psychiatric examination to establish that
battered-woman syndrome caused in her "a bona fide belief that
she was in imminent danger of death or great bodily harm and
that her only means of escape was the use of force," i.e., to use
testimony on battered-woman syndrome to prove the second
element of self-defense, a court may compel the defendant to
submit to an examination by another expert without violating the
defendant's rights under Section 10, Article I of the Ohio
Constitution and the Fifth Amendment to the United States
Constitution.
Id. at ¶ 58, quoting State v. Thomas, 99 Ohio St.3d 323,326 (1997).
Continuing, the Ohio Supreme Court then stated in Goff:
By putting her mental state directly at issue and introducing
expert testimony based upon her own statements to the expert,
the defendant opens the door to a limited examination by the
state's expert concerning battered-woman syndrome and its
effect on the defendant's behavior.
Id.
Finally, the Ohio Supreme Court stated in Goff:
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Courts have the inherent authority to preserve fairness in the
trial process, and allowing the defendant to present expert
testimony on the specific effects of battered-woman syndrome
on the defendant while denying the prosecution the ability to
introduce such evidence would unfairly handicap the
prosecution and prevent the trier of fact from making an
informed decision.
Id.
{¶ 8} Applying the principles outlined by the Ohio Supreme Court in Goff to the case
at bar, the trial court stated:
And based on that the Court believes it's being put into a
position where either the Court permits the testimony of Dr.
Manges and doesn't allow the State to have an expert examine
[Shearer] with regards to that issue, the Court would be put in
the position of defying the Ohio Supreme Court and would be,
by the language of that very decision, creating unfairness and
preventing the trier of fact from making an informed decision.
And the Court is simply not going to do that. So the Court
believes it must, based on that case, grant the motion in limine
and exclude Dr. Mange's testimony unless the State has the
opportunity for an examination of [Shearer] in this case.
{¶ 9} Thereafter, when asked if he was prepared to go forward with the jury trial as
scheduled, Shearer's trial counsel informed the trial court that he would need to discuss the
matter with Shearer. Specifically, Shearer's trial counsel stated:
Obviously, that changes the situation for her. I would argue that
we are not if we're unable – because at this point she has to
now choose between whether she waives her speedy right to
trial or waives her right to call an expert as a witness. I think
that I have to sit [and] discuss with her whether or not she wants
to make that an appellate issue or whether she wants to ask for
a continuance.
{¶ 10} The following day, April 21, 2017, and after discussing the matter fully with
Shearer, Shearer's trial counsel filed a motion to continue. In support of this motion,
Shearer's trial counsel stated that because he had just "received over 700 pages of
discovery 3 business days before the scheduled trial" from the state, he had been prevented
"from being able to present necessary evidence in [Shearer's] defense." Therefore,
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according to Shearer's trial counsel, "[Shearer] must decide which Constitutional right to
waive. On advice of counsel, she has decided to waive her right to a trial within 90 days of
arrest based on the idea that the current Jury Trial can be continued to a June 2017 date."
{¶ 11} Later that same day, the trial court granted Shearer's motion to continue and
ordered that all expert reports be disclosed and exchanged between the parties by May 26,
2017. The trial court thereafter granted the state's motion requesting permission for their
expert, Dr. Jennifer O'Donnell, a forensic psychologist, to interview Shearer at the Butler
County Jail "regarding Battered Person's Syndrome and [Shearer's] thoughts and actions
as it relates to the Syndrome." The record indicates that all expert reports were then
disclosed and exchanged between the parties in accordance with the trial court's previous
order on the same.
The Trial
{¶ 12} A five-day jury trial was held on June 19 through June 23, 2017. During this
time, the jury heard testimony from numerous witnesses, including Shearer herself. The
following is a summary of that testimony and the evidence presented at trial.
The State's Case-in-Chief
{¶ 13} The state's first witness was Dr. Mary Elizabeth Goolsby, a deputy coroner
and forensic pathologist with the Montgomery County Coroner's Office, who, after
conducting an autopsy of Tony's body, determined that Tony's cause of death was a
homicide resulting from a single gunshot wound to the head. Dr. Goolsby, however, was
unable to offer her opinion regarding the exact distance from where the gun was fired in
relation to Tony's head. Rather, as Dr. Goolsby testified, assuming there was nothing
between the gun Shearer used and Tony's head, "it could have been a few inches to a few
feet to a distant range such as a mile or two."
{¶ 14} The state's next witness, a woman who lived near where Tony was shot,
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testified that at approximately 7:45 p.m. on the day in question, she saw Shearer run out of
the house located at 3601 Ellis Way and proceed to the right side of her car parked in the
driveway before running back inside the house. According to this witness' testimony,
nobody was chasing Shearer at the time. This witness also testified that she did not think
anything out of the ordinary upon seeing Shearer that evening. Approximately one hour
later, however, this witness testified that she and her husband noticed a large police
presence outside the house located at 3601 Ellis Way and that the house had been totally
roped off "[s]o something bad has really happened."
{¶ 15} Detective Kristy Hughes with the Middletown Police Department then testified
for the state. Detective Hughes, who also works overtime as a 9-1-1 dispatcher, testified
she received a 9-1-1 call from Shearer at 8:27 p.m. on the night in question. A recording of
that 9-1-1 call between Detective Hughes and Shearer was then authenticated and played
for the jury. As part of this recording, Shearer can be heard telling Detective Hughes she
shot Tony because "we were arguing over stuff." Shearer can also be heard telling
Detective Hughes she thought she shot Tony in the head, but that she was not exactly sure
where.1 At no time during this 9-1-1 call, however, did Shearer ever claim to have shot
Tony in self-defense, nor did Shearer ever state that Tony had been choking her, hitting
her, or abusing her in any way prior to the shooting.
{¶ 16} Next was Officer Christine Sorrell with the Middletown Police Department who
testified for the state. Officer Sorrell testified she was dispatched to 3601 Ellis Way at 8:28
p.m. on the night in question on reports that there had been a shooting, taking approximately
one minute to arrive at the scene. Before arriving at the scene, however, Officer Sorrell
testified she turned on her lights and siren, thereby also activating her in-car cruiser camera
1. The record is unclear as to whether Shearer was referring to where in the house she shot Tony or where
the bullet had actually hit him.
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and microphone. The recording from Officer Sorrell's in-car cruiser camera was then
authenticated and played for the jury, which shows Officer Sorrell arriving at the scene and
contacting Shearer, who appeared somewhat unsteady and slow. Upon making contact
with Shearer, Officer Sorrell testified that Shearer repeatedly stated, "I don't know what I
did." When asked if she noticed anything about Shearer's speech, Officer Sorrell testified
Shearer's speech was "slightly slurred," thus giving Officer Sorrell the impression Shearer
may have been under the influence of either drugs or alcohol.
{¶ 17} After placing Shearer in the back of her cruiser, Officer Sorrell testified she
then went into the house located at 3601 Ellis Way where she found Tony lying
unresponsive on the living room floor. A photograph of Tony's body as discovered by Officer
Sorrell was then shown to the jury. This photo shows Tony face down on the living room
carpet with a large pool of blood around his head. Upon seeing Tony's body, Officer Sorrell
testified she reached down to see if Tony was breathing or if there was anything that could
be done before the ambulance arrived. It is undisputed that Tony was not breathing at that
time.
{¶ 18} Once the ambulance arrived, Officer Sorrell testified she went outside to her
cruiser and spoke with Shearer, who, upon Officer Sorrell opening the door, exhibited the
smell of an alcoholic beverage on her person. Not seeing any injuries to Shearer, nor
receiving any complaints from Shearer that she was injured, Officer Sorrell testified she
then transported Shearer to the police station where detectives were awaiting her arrival.
During this brief drive, Officer Sorrell testified Shearer repeatedly stated, "I don't know what
I did."
{¶ 19} Officer Connor Kirby with the Middletown Police Department then testified for
the state. Officer Kirby testified he was the second officer to arrive at the scene upon being
dispatched to 3601 Ellis Way on reports of a shooting. Once there, Officer Kirby testified
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that he acted as the cover officer for Officer Sorrell after Shearer was ordered to walk
backwards from the house towards them. During this time, Officer Kirby testified Shearer
repeated three or four times "I don't know what I did, I don't know what I did," before Officer
Sorrell handcuffed her and placed her in the back of her cruiser.
{¶ 20} After Shearer was placed in the back of Officer Sorrell's cruiser, Officer Kirby
testified he retrieved crime scene tape from his cruiser and secured the scene. When asked
if he saw any injuries to Shearer that evening, Officer Kirby testified that he did not. Officer
Kirby then testified that he too noticed a "strong" order of alcoholic beverage on Shearer's
person. Specifically, Officer Kirby testified:
It was just a strong odor. It almost knocks you down. It comes
right at you. You immediately know when you smell it. It just
had a strong odor to it consistent with beer or an intoxicating
beverage.
{¶ 21} Officer Brook McDonald with the Middletown Police Department was the next
witness to testify for the state. In addition to serving as a patrolman, Officer McDonald
testified he also served as an evidence technician. In explaining his duties as an evidence
technician, Officer McDonald testified that he is tasked with collecting any evidence that
could be valuable to the investigation; more specifically, "[a]ny evidence that could
potentially prove innocence or guilt."
{¶ 22} As it relates to the night in question, Officer McDonald testified he was
dispatched to 3601 Ellis Way upon receiving a report that a female had shot her husband.
As the fourth officer to arrive at the scene, Officer McDonald testified he and another officer
cleared the area to make sure nobody else was inside the house. Upon entering the house,
Officer McDonald testified he saw Tony lying unresponsive face down on the living room
carpet. When asked if he attempted to provide any medical care to Tony, Officer McDonald
testified that he did not "due to the injury to his head, I felt that if I tried anything that it could
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potentially make things worse."
{¶ 23} Once the ambulance arrived, Officer McDonald testified he began
photographing the scene. These photographs, which were properly authenticated, depict
a bullet hole in the living room wall believed to be related to this shooting, as well as the
weapon Shearer used in the shooting, a Springfield Armory XD-S 9mm semi-automatic
pistol. These photographs also included images of a rifle located in the kitchen, several
other firearms that were in a locked gun safe in the garage, as well as photos of Tony's van
parked in the driveway seemingly blocking in Shearer's car. When asked about these
photos, Officer McDonald testified that it was fair to say he photographed and collected
anything and everything that he thought could be involved in the shooting.
{¶ 24} Detective Vince Lovejoy with the Middletown Police Department then testified
for the state. Detective Lovejoy testified he arrived at 3601 Ellis Way at 9:15 p.m. on the
night in question after receiving a report that "a female had shot her husband in the head."
Detective Lovejoy, who also served as an evidence technician, testified that he and Officer
McDonald obtained a search warrant and thereafter processed the scene. As Detective
Lovejoy testified, this included conducting a walkthrough of the house and taking
photographs of anything and everything they believed was important to their investigation,
such as the firearm Shearer used in the shooting, bullets, a gun cleaning kit, a broken gun
case, and a cell phone, all of which were located in the living room where the shooting took
place.
{¶ 25} Andrew McClelland, a forensic scientist who specializes in firearms for the
Ohio Bureau of Criminal Investigations, then testified for the state. McClelland testified he
tested the operability of the firearm Shearer used to shoot Tony as part of his duties working
as a forensic scientist. According to McClelland, the pistol Shearer used was operable in
that it was capable of expelling a bullet as intended. McClelland also testified that the spent
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shell casing located at the scene was fired from the weapon Shearer admittedly used to
shoot Tony.
{¶ 26} Officer Minic with the Middletown Police Department was the next witness to
testify for the state. Officer Minic, who serves as both patrolman and an evidence
technician, testified he arrived at 3601 Ellis Way at 8:29 p.m. on the night in question upon
reports that there was a shooting. Upon arriving at the scene, Officer Minic testified he
found "a subject suffering from a gunshot wound." Thereafter, upon being assigned to
photograph and collect items from the victim, Officer Minic testified he was dispatched to
the nearby hospital where Tony was taken for further medical treatment. Once there, Officer
Minic took photographs and collected Tony's clothing before responding to the police
department to collect DNA samples from Shearer. Officer Minic then testified he took
photos of Shearer and obtained DNA samples of her mouth and hands, during which time
Officer Minic testified Shearer "asked why we were doing a search warrant for her hands,
when she stated that she had shot him."2
{¶ 27} Detective Elizabeth Stewart with the Middletown Police Department then
testified for the state. Detective Stewart testified that she received a call at 8:41 p.m. on
the night in question regarding a homicide that took place at 3601 Ellis Way. As the on-call
detective that day, Detective Stewart testified she contacted Sergeant Carrozza before
responding to the scene. Once at the scene, Detective Stewart contacted Officer Kirby, the
officer assigned to maintain a log of individuals going into and out of the house, before
speaking with Sergeant Carrozza, who informed her that Officer Sorrell had taken Shearer
to the police station to be interviewed. Upon being so informed, Detective Stewart testified
2. It should be noted, a video recording of Officer Minic's interactions with Shearer indicates Shearer actually
asked Officer Minic why he was taking a swab of her mouth, not her hands, prior to informing Officer Minic
that "[she] shot him."
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she then went inside the house located at 3601 Ellis Way where she looked around for
approximately 12 minutes before going back to the police station to interview Shearer.
{¶ 28} A video recording of Detective Stewart interviewing Shearer was then
authenticated and played for the jury. As part of this interview, which began at 9:41 p.m.,
Shearer informed Detective Stewart she and Tony had previously been married for 23
years. However, after Tony had a nervous breakdown in 2012 because of alleged sexual
abuse he sustained as a child, Tony's behavior changed, thus prompting their divorce.
Shearer then told Detective Stewart that Tony had been receiving treatment for
posttraumatic stress disorder, but that his treatment stopped due to his lack of insurance.
Nevertheless, in hopes of reconciling their marriage, Shearer informed Detective Stewart
she had been staying with Tony for the past few months "to work things out." Shearer then
stated:
Tony's sick. But I've got my own issues and it's just been very
hard. Because Tony never laid his hands on me. And its been
like that the last five years and that's what set that off tonight, I
thought man you ain't putting your hands on me again. Because
Tony wasn't like that before his nervous breakdown. So, not
that I made a wise decision.
{¶ 29} In addition to this statement, Shearer can also be heard on the video recording
stating "[t]his ain't me. I would never do this." Although the video recording indicated as
much, when asked if Shearer ever said anything about being choked, beaten, or that she
was in fear for her life, Detective Stewart testified "No." Detective Stewart further testified
that she did not see any injuries to Shearer's person during her interview of Shearer, but
did notice that Shearer had an odor of alcoholic beverage on her person.
{¶ 30} The following day, after Shearer was booked into the Butler County Jail, and
after a search warrant was obtained for Shearer's person, Detective Stewart testified she
also photographed Shearer. When asked why she took these pictures when Officer Minic
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had already done so the day before, Detective Stewart testified she "wanted to move
clothing so I could get closer pictures and perhaps pictures of areas that were underneath
her clothing." Detective Stewart further testified that Shearer "didn't really give me much
information of what had occurred that night. And just to do a complete investigation, I felt
that it was necessary to have documentation of any injuries, even though she did not report
any to me." As observed by Detective Stewart, these photos revealed some faint scratching
on Shearer's chin and her right collarbone, injuries that were not present on the photos
taken by Officer Minic. Stewart's photos also showed faint scratches, bruising, and/or light
redness to Shearer's right forearm, elbow, neck, right lower back, and left bicep. Reiterating
her prior testimony, Detective Stewart again testified that Shearer never complained of any
injuries, nor did Shearer ever ask for any medical attention.
{¶ 31} Following the admission of its exhibits, the state rested its case-in-chief.
Shearer then moved for acquittal under Crim.R. 29(A), which the trial court denied.
Shearer's Defense
{¶ 32} As the first witness called in Shearer's defense, a woman testified that she
saw two people – one a man and the other a woman – "fussing" outside the home located
at 3601 Ellis Way on the night in question. Continuing, this witness testified she watched
as the man "raised their hand up. I don't know exactly if it was a hit or what, but I know it
was a man and a woman standing outside that house over there. And I'm like, wow." This
witness, however, could not identify who these people were or when this incident took place.
As this witness testified, "I don't know who it was out there with the commotion that was
going on." This witness further testified that she did not know what happened and could
not say "if he struck her or what happened. I don't know." Concluding, this witness testified
she then heard "someone screaming saying call the police, call the police," and watched as
several police cruisers and an ambulance arrived at the scene.
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{¶ 33} The next witness to testify in Shearer's defense was Jessica Kruse. Kruse,
the owner, next door neighbor, and property manager of the house located at 3601 Ellis
Way, testified she "heard some yelling" coming from next door while she out on her front
porch, but that "[i]t was not clear enough to make out what the yelling was in regards to or
what even was being said." As Kruse testified, to the best of her recollection, "I remember
yelling and it might have been like something maybe glass breaking or something along
those lines. It just sounded like a lot of commotion going on over there." Kruse then testified
she saw Shearer come out of the house and go around to her car parked in the driveway,
"so when she went outside and all that, I kind of took my kids inside because at that point I
didn't know if the incident was going to come out into the street." Kruse did not provide any
further testimony or evidence regarding the shooting.
{¶ 34} James Murdock then testified in defense of Shearer. Murdock, who had been
Shearer's chiropractor since October 21, 2014, testified Shearer at one point mentioned to
him "that she thought maybe some of her neck pain could have been from getting hit in the
head a lot in the past by her husband." Murdock further testified he remembered Shearer
"specifically saying she thought she possibly might have some of her neck problems from
in the past being hit in the head a lot." To this, Murdock, not a psychologist himself, testified
he "thought some of her symptoms were related to a psychological situation so I referred
her to a specialist," later identified as Dr. Jeffrey Baker. Thereafter, when asked about when
this alleged abuse may have occurred, Murdock testified Shearer told him "she thought
maybe it could have started her whole neck problem years ago," but that "[i]t wasn't directly
at that current time."
{¶ 35} Dr. Baker then testified in Shearer's defense. Dr. Baker, who is a clinical
psychologist, licensed independent chemical dependency counselor, and clinical
supervisor for the state of Ohio, testified he treated Shearer for "symptoms of fear and
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depression" on four occasions between January 6, 2016 through August 17, 2016.
According to Dr. Baker, he first treated Shearer on January 6, 2016, during which she
exhibited a "high degree of emotional disturbance" resulting from her being in an abusive
relationship "that was both emotionally and physically abusive" and also "that her father had
been physically abusive" and that "her mother had been very emotionally abusive." Dr.
Baker testified he next treated Shearer on February 3 and February 26, 2016, while she
was "in a deep, dark place. I call it just a doom and gloom," which he attempted to treat by
"trying to help her unhook from these intense negative feelings and thoughts." Dr. Baker
then testified he wanted to do a "desensitizing exercise to try to tone down some of this
emotional intensity," but that he "never got a chance to do that because I didn't see her
again until months later on [August 17, 2016]."
{¶ 36} Nevertheless, when asked by Shearer's trial counsel what was the basis of
Shearer's fear and depression, the following exchange occurred:
[DR. BAKER]: Well, on [January 6, 2016], the fear was primarily
about her husband and she was afraid of seeing his white van
and kept having, almost preoccupied with this idea that she
would see it and just be terrified. And so I was going do a
desensitizing exercise so that if she happened to see a white
van, she would – she wouldn't have, just – be emotionally
overwhelmed by it.
[SHEARER'S TRIAL COUNSEL]: And this was because of the
relationship between her and her husband?
[DR. BAKER]: She described it as being abusive is the word
she used over and over again.
[SHEARER'S TRIAL COUNSEL]: And when she described it as
being abusive over and over, what type of things would she tell
you?
[DR. BAKER]: About being hit, you know. She described
multiple types of physical abuse, being punched and hit and him
being in rages. She also described both of their alcohol abuse.
That was also kind of in my notes as well, that she abused
alcohol and he did too.
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{¶ 37} Dr. Baker further testified that he observed Shearer to have a "low frustration
tolerance," a condition that he described as a disproportionate reaction to the world around
her. Concluding, although never claiming Tony had ever held a gun to her head, Dr. Baker
testified Shearer "described high levels of fear related to being abused is what she said."
{¶ 38} Leah Lopez then testified in defense of Shearer. Lopez, who is Shearer's
adult daughter, but who had no biological relationship with Tony, testified that "Tony was
essentially like my father. He raised me since I was five years old." Lopez was then shown
several photos taken of the inside of home located 3601 Ellis Way, pointing out multiple
"patch marks" on the interior walls, as well as several damaged doors taken from the home.
Lopez, however, did not testify how any of the walls and/or doors were damaged. Lopez
further testified that she informed a detective the night of the shooting that she "had never
seen [her] parents be physically fighting each other." Finally, when asked if there had been
physical violence going on in the home that Shearer would have hidden it from her, Lopez
testified "[m]ore than likely, yes. She would not have told me."
{¶ 39} Shearer then testified in her own defense. Shearer testified that she and Tony
were married in June of 1994 after having dated for approximately eight months.3 According
to Shearer, her marriage to Tony started in the typical fashion – arguing over things like
bills, money, and the kids. This all changed, however, when Tony suffered from a nervous
breakdown in 2012 brought on by alleged past sexual abuse he sustained as a child, which
ultimately resulted in him being hospitalized following a failed suicide attempt. As Shearer
testified, "Tony wasn't never the same after that. Tony never really seemed to be happy,
but there was also a lot of things at that time going on." This included instances where
Tony was verbally and physically abusive towards her, pushing, shoving, slapping, and
3. According to the record, Shearer married Tony after breaking up with her high school sweetheart, who
Shearer alleged was also physically abusive towards her.
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choking her "a lot." Shearer also testified Tony would "hit the walls, kick the doors, throw
things if he wanted to," behaviors that continued "[u]ntil the night of the shooting."
{¶ 40} Approximately four years after Tony's nervous breakdown, Shearer and Tony
were divorced.4 Shearer, however, testified she moved back in with Tony to reconcile their
marriage because she loved him and thought that he was dying. As Shearer testified, "Tony
actually told me he was dying. He told me his liver and his kidneys were shutting down and
he needed to get confirmation from the doctor what for." To this, Shearer testified "I just
figured I've been with him this long, I might as well stay with him till his passing."
Specifically, when asked why she decided to move back in with Tony when he was abusive
towards her, Shearer testified "I just thought things would change."
{¶ 41} Things did not change, but instead, according to Shearer, "[t]he arguments
did become more. And then it would – he would like slap me in the face or push me. And
then, he'd end up choking me with both of his hands. Now when that occurred, that did
scare me, because he was suffocating me." According to Shearer, this caused her to "get
fearful that [she] was going to die." Shearer also testified that Tony at one time picked up
a nearby gun, "swung it around, put the gun to my head, and clicked. There was no clip in
it." Thereafter, when again asked again why she stayed with Tony when he was abusive
towards her, Shearer testified:
I actually – he started buying a lot of guns. I was getting scared
to even leave the house. You know, just a lot of things that he
was doing was making me very fearful of him and I honestly
didn't know how I was going to leave this time without him trying
to kill himself. You really don't know the burden of someone's
constantly trying to kill their selves (sic) and you going to carry
the burden if he did kill himself. I did not want to carry that
burden if he kills himself, it's my fault because I left. It's very
hard. I mean, I don't know what answer anybody's wanting me
4. On cross-examination, Shearer acknowledged that she had not disclosed any abuse as part of the divorce
proceedings. Shearer also acknowledged that she never went to the hospital or called the police, nor did
Shearer ever confide in her family or children about the alleged abuse during her marriage to Tony.
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to give on that because there really isn't one. It's very hard to
give an answer to that.
{¶ 42} Moving on to the day of the shooting, Shearer testified that Tony became
upset with his brother, whom he worked with every day as a floor installer. Specifically,
Shearer testified that "[a]s a witness to working with him as an installer at times, sometimes
we would pull in and just the sight of [his brother] would upset him." On this occasion,
Shearer testified that Tony became "irritated" with his brother, thus causing him to pick up
a nearby gun case and throw it on the floor. In response, Shearer testified that she went
into the bedroom "just to get away from him." Tony, however, broke through the door and,
as Shearer testified, started "choking [her] out on the bed." According to Shearer, this
created a "very small scar" on her neck from Tony's jewelry "digging in" to her skin.
{¶ 43} Upon coming to, Shearer, who admitted to having "a couple of drinks" earlier
in the day, testified she walked out of the bedroom and into the living room where Tony was
talking on the phone with his mother asking her if she believed his claims that he had been
sexually abused as a child. When asked why she did not simply leave the house, Shearer
testified that her keys were by the living room door and that her phone was on the desk next
to a gun, the same gun Shearer testified she later used to shoot Tony in the head. Seeing
that she was trying to leave, Shearer testified Tony got up off the couch and "was very
irritated about that." Believing Tony was going to try and kill her, Shearer testified, "[w]hen
I seen the anger in his eyes, and him yelling, and I could not hear what he was yelling
because I was so scared, I grabbed the gun and I shot him." When asked why she shot
Tony that evening, Shearer testified she shot Tony in self-defense because "I really thought
he was trying to kill me."
{¶ 44} Detective Lovejoy, who previously testified as part of the state's case-in-chief,
was then called to testify in Shearer's defense. Detective Lovejoy testified that jewelry was
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taken from Tony's person after he was transported to the hospital, but that none of the
jewelry was ever sent to the lab for DNA testing. Detective Lovejoy also testified that no
fingernail scrapings were taken from Tony on the night in question. Detective Lovejoy
testified, however, that he never had any reason to suspect any DNA evidence would be
found under Tony's fingernails, thereby alleviating the need to conduct such testing.
Detective Lovejoy further testified that there was nothing special about the broken bedroom
door that he inspected and photographed that would necessitate that door being removed
from the scene as part of the investigation into the shooting.
{¶ 45} Shearer next called Adam Plieman to testify in her defense. Adam Plieman
is an audio engineer with Sound Images, a company that does work in, among others,
"cleaning, restoration, and editing of dialogue for commercials and film, as well as in
instances like this in forensic work * * *." Plieman testified that he analyzed two phone calls
involving Shearer, one of which occurred approximately 20 minutes before the shooting,
wherein Tony, seemingly upset, can be heard discussing his brother and his claims that he
had been sexually abused as a child. The other recording, which occurred a month prior to
the shooting, includes comments from Shearer claiming Tony had choked her and that he
was threatening to kill himself, as well as several instances where Shearer can be heard
telling Tony he is a "psycho" who is going through "bi-polar bullshit." Shearer can also be
heard saying to Tony "[y]ou ain't a fucking man" and "[y]ou ain't a god damn man." The
record indicates both recordings were authenticated and played for the jury.
{¶ 46} Detective Stewart, who also previously testified as part of the state's case-in-
chief, was then called to testify in Shearer's defense. Detective Stewart testified that she
reviewed photos that were on Shearer's phone as part of the investigation, which she then
turned over to the state, who in turn provided them to Shearer's trial counsel through
discovery. Included in these was a "selfie" photograph that Shearer had taken of herself, a
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photograph that Detective Stewart testified she found insignificant in her investigation into
the shooting.
{¶ 47} Finally, Shearer called Dr. Manges to testify in her defense. Dr. Manges, who,
as noted above, is a forensic psychologist, testified as an expert witness regarding battered-
woman's syndrome. Prior to providing such testimony, however, the record indicates
Shearer's trial counsel agreed that he was limited in his questioning of Dr. Manges since,
as the trial court stated, "the expert cannot opine that the complainant was a battered
woman, nor testify that the defendant was a batterer or that [s]he is guilty of the crime." The
trial court, however, did allow Dr. Manges to "answer pertinent medical questions regarding
specific abnormal behaviors exhibited by women suffering from a syndrome but should
never offer an opinion relative to the alleged battered woman in the case."
{¶ 48} In responding to Shearer's trial counsel's questions, Dr. Manges testified he
conducted a five-hour interview and evaluation of Shearer while she was being held in the
Butler County Jail. During this time, Dr. Manges testified he used questionnaires and other
standardized tests to measure Shearer's "emotional functioning" and "response to trauma,"
from which he generated a report of his findings. The report, which was later provided to
the state in discovery, was based on Dr. Manges expertise in battered-woman's syndrome,
which he described as "a recognized psychological phenomenon where the individual, in
this case a woman – could be a man, but in this case, a woman – has been mentally and
physically and sometimes sexually abused by their spouse."
{¶ 49} According to Dr. Manges, a battered woman who has suffered from repeated
instances of abuse develops a "sense of guilt" about leaving the abuser, which ultimately
results in the battered woman "walking on eggshells, and they try to protect their loved one,
the abuser, and try to protect themselves." As Dr. Manges testified, the battered woman is
oftentimes "troubled. They may abuse alcohol themselves. They may go to the doctor's
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office but not disclose why it is that they are in the doctor's office." Dr. Manges also testified
that it was not uncommon for the battered woman to keep secret the fact that she was being
abused, likely due to the shame or embarrassment that may arise from the fact that "they're
married to a person who physically abuses them." When determining if someone is a
battered woman, Dr. Manges testified he looks at "repeated conditions – repeated abuse –
repeated beatings or repeated abuse, mental or sexual."
{¶ 50} Moving on to Shearer specifically, although never expressly stating his
opinion as to whether Shearer suffered from battered-woman's syndrome, Dr. Manges
testified that his testing revealed she was suffering from trauma and emotional distress. In
so finding, Dr. Manges testified he came to this result after discussing the alleged incidents
of abuse. Concluding, when asked what type of demeanor he would expect from someone
that was being abused, thereby potentially suffering from battered-woman's syndrome, the
following exchange occurred:
[SHEARER'S TRIAL COUNSEL]: [W]hat type of demeanor do
you expect, or what, typically, demeanors do they have in range
of demeanors that someone may have that's being involved or
being a victim of domestic violence?
[DR. MANGES]: Well, it depends on who's asking the question
and under what context the question's being asked. The person
may have emotional upset (sic), or they may have been
resigned to the circumstance and have flat affect. They can be
emotionally overwrought. I mean, there's a range. It's not
necessarily always the same, in which they respond to the
questions.
[SHEARER'S TRIAL COUNSEL]: And in addition to not always
being the same, you discussed the flat affect. Is that
avoidance?
[DR. MANGES]: It could be. A flat affect means that they don't
emote. They're not happy, sad, mad, glad. They're just flat.
And so that – they're good poker players. They don't disclose
what's going on for them emotionally. And that can happen as
well.
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Following the admission of her exhibits, Shearer then rested her defense.
The State's Rebuttal
{¶ 51} In rebuttal, the state called Dr. O'Donnell to testify. As noted above, Dr.
O'Donnell, a forensic psychologist, was permitted to interview Shearer at the Butler County
Jail "regarding Battered Person's Syndrome and [Shearer's] thoughts and actions as it
relates to the Syndrome." Expanding on Dr. Manges testimony, Dr. O'Donnell testified
regarding her understanding of battered-woman's syndrome, its origins, and how research
has changed since battered-woman's syndrome was first introduced in the 1970s. Dr.
O'Donnell then testified regarding the criteria that are generally looked for when assessing
whether an individual could be considered a battered person, such as repeated experiences
of traumatic abuse,"[h]igh levels of physiological and psychological arousals of systems,"
as well as "[h]igh levels of avoidance of, avoidance symptoms and numbing of emotions."
According to Dr. O'Donnell, however, there is no empirical evidence to prove battered
woman's syndrome meets rigorous diagnostic criteria. Not offering any other rebuttal
testimony or evidence, the state then rested its case on rebuttal.
The Jury's Verdict and the Trial Court's Sentence
{¶ 52} After both parties rested, and after closing arguments were completed, the
trial court provided the jury with its final instructions and released the jury to begin its
deliberations. Shortly thereafter, upon coming to a unanimous verdict, the jury returned to
the courtroom and issued its verdict finding Shearer guilty as charged, thereby rejecting
Shearer's claim that she had acted in self-defense. The matter then proceeded to
sentencing. At sentencing, the trial court determined that the charges were allied offenses
of similar import subject to merger for purposes of sentencing and, upon the state's election,
sentenced Shearer to serve a mandatory term of 15-years-to-life in prison for murder, with
an additional, mandatory and consecutive three years in prison on the accompanying
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firearm specification, for a total, aggregate prison term of 18-years-to-life. The trial court
also ordered Shearer to pay court costs.
The Appeal
{¶ 53} Shearer now appeals, raising four assignments of error for review. For ease
of discussion, Shearer's third assignment of error will be addressed out of order.
{¶ 54} Assignment of Error No. 1:
{¶ 55} APPELLANT'S SPEEDY TRIAL RIGHTS WERE VIOLATED WHEN SHE
WAS COERCED INTO WAIVING HER SPEEDY TRIAL RIGHTS.
{¶ 56} In her first assignment of error, Shearer argues her conviction must be
reversed and the charges against her dismissed since she was "coerced" into waiving her
speedy trial rights. We disagree.
{¶ 57} The right to a speedy trial is guaranteed by the Sixth and Fourteenth
Amendments to the United States Constitution and by Article I, Section 10, Ohio
Constitution. State v. Taylor, 98 Ohio St. 3d 27, 2002-Ohio-7017, ¶ 32. To preserve this
right, the Ohio General Assembly enacted this state's speedy trial statutes found in R.C.
2945.71 through 2945.73. State v. Miller, 12th Dist. Warren No. CA2009-01-008, 2009-
Ohio-4831, ¶ 8. As relevant here, R.C. 2945.71(C)(2) provides that a person against whom
a charge of felony is pending "[s]hall be brought to trial within two hundred seventy days
after the person's arrest." However, pursuant to 2945.71(E), "each day during which the
accused is held in jail in lieu of bail on the pending charge shall be counted as three days."
Compliance with these statutes is mandatory and the statutes "must be strictly construed
against the state." Id., citing State v. Cox, 12th Dist. Clermont No. CA2008-03-028, 2009-
Ohio-928, ¶ 12.
{¶ 58} An appellate court's standard of review regarding speedy-trial issues involves
a mixed question of law and fact. State v. Messer, 12th Dist. Clermont No. CA2006-10-
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084, 2007-Ohio-5899, ¶ 7. In conducting such a review, "the appellate court defers to the
trial court's findings of fact as long as the findings are supported by competent, credible
evidence, but the appellate court independently reviews whether the trial court properly
applied the law to those facts." State v. Gellenbeck, 12th Dist. Fayette No. CA2008-08-
030, 2009-Ohio-1731, ¶ 8, citing State v. Riley, 162 Ohio App. 3d 730, 2005-Ohio-4337, ¶
19 (12th Dist.).
{¶ 59} As noted above, Shearer claims her conviction must be reversed and the
charges against her dismissed since she was "coerced" into waiving her speedy trial rights.
The record in this case contains no such waiver. Rather, when faced with the potential of
having her experts' testimony excluded from trial as a consequence of her violating the
timing requirements found in Crim.R. 16(K), Shearer, on advice of her trial counsel, moved
for a continuance. While Shearer believes such a decision was coerced, we find Shearer's
decision to move for a continuance was entered knowingly, intelligently, and voluntarily on
the advice of counsel in order to provide her with the best chance of defending against the
serious nature of the charges levied against her. Shearer's claim otherwise lacks merit.
{¶ 60} In so holding, we specifically reject Shearer's claim that the "timing of the
indictment and the subsequent motions in limine seem to be suspect," thereafter referring
to the prosecutor's actions in challenging her experts' testimony under Crim.R. 16(K) as
"disingenuous at best." The record indicates this case was bound over to the Butler County
Grand Jury on March 3, 2017, the matter thus falling under the trial court's jurisdiction from
that date forward. Shearer, however, seemingly resting on her laurels, did nothing to
procure her experts' testimony until after she was indicted over a month later on April 5,
2017. While this case may have diverged somewhat from the status quo, as the trial court
stated, "while there was not an indictment filed, this court did have jurisdiction over the
matter," during which "[it] will routinely hear motions prior to indictments, such as motions
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for modification of bond or even bills of information, on cases that are assigned to this court
prior to indictment." No such motions were filed in this case. Therefore, while we certainly
understand and appreciate advocating one's position, particularly in a case of such
magnitude, Shearer's accusations against the prosecutor in this case are unbecoming and
unnecessary. Accordingly, finding no violation of Shearer's speedy trial rights necessitating
her conviction be reversed and the charges against her dismissed, Shearer's first
assignment of error lacks merit and is overruled.
{¶ 61} Assignment of Error No. 3:
{¶ 62} THE COURT ERRED IN ORDERING APPELLANT TO BE INTERVIEWED
BY THE STATE'S EXPERT.
{¶ 63} In her third assignment of error, Shearer argues the trial court erred by
requiring her to be interviewed by the state's expert, Dr. O'Donnell, which, we note, was
limited by the trial court to "Battered Person's Syndrome and [Shearer's] thoughts and
actions as it relates to the Syndrome." In support of this claim, Shearer argues the trial
court's order requiring her to be interviewed by Dr. O'Donnell violated her Fifth Amendment
right against self-incrimination. However, not only do we find Shearer likely waived this
claim by not raising such a claim before the trial court, see State v. Vaughn, 12th Dist.
Fayette No. CA2014-05-012, 2015-Ohio-828, ¶ 9 ("issues not raised in the trial court may
not be raised for the first time on appeal because such issues are deemed waived"), the
Ohio Supreme Court specifically rejected this claim in Goff, which held:
[W]e conclude that when a defendant demonstrates an intention
to use expert testimony from a psychiatric examination to
establish that battered-woman syndrome caused in her "a bona
fide belief that she was in imminent danger of death or great
bodily harm and that her only means of escape was the use of
force," i.e., to use testimony on battered-woman syndrome to
prove the second element of self-defense, a court may compel
the defendant to submit to an examination by another expert
without violating the defendant's rights under Section 10, Article
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I of the Ohio Constitution and the Fifth Amendment to the United
States Constitution.
(Emphasis added.) Id., 2010-Ohio-6317 at ¶ 58, quoting State v. Thomas, 77 Ohio St.3d
323,326 (1997).
This is because, as the Ohio Supreme Court further stated in Goff:
By putting her mental state directly at issue and introducing
expert testimony based upon her own statements to the expert,
the defendant opens the door to a limited examination by the
state's expert concerning battered-woman syndrome and its
effect on the defendant's behavior. Courts have the inherent
authority to preserve fairness in the trial process, and allowing
the defendant to present expert testimony on the specific effects
of battered-woman syndrome on the defendant while denying
the prosecution the ability to introduce such evidence would
unfairly handicap the prosecution and prevent the trier of fact
from making an informed decision.
Id.; see also Kansas v. Cheever, 571 U.S. 87, 134 S. Ct. 596, 601 (2013) ("[w]hen a
defendant presents evidence through a psychological expert who has examined him, the
government likewise is permitted to use the only effective means of challenging that
evidence: testimony from an expert who has also examined him").
{¶ 64} That is exactly what occurred here, through such a rigorous and thorough
application of Goff to the facts of this case that both the trial court and the state should be
commended. Therefore, finding no error in the trial court's decision to adhere to the law of
this state as pronounced by the Ohio Supreme Court in Goff, Shearer's third assignment of
error lacks merit and is overruled.
{¶ 65} Assignment of Error No. 2:
{¶ 66} STATEMENTS MADE BY THE PROSECUTION IN CLOSING
CONSTITUTED PROSECUTORIAL MISCONDUCT AND AS A RESULT APPELLANT
WAS PREJUDICIALLY AFFECTED.
{¶ 67} In her second assignment of error, Shearer argues her conviction must be
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reversed due to the prosecutor's alleged misconduct during the state's rebuttal closing
argument. We disagree.
{¶ 68} For her conviction to be reversed based on prosecutorial misconduct, Shearer
must prove the prosecutor's comments during the state's closing argument were improper
and that those comments prejudicially affected her substantial rights. State v. Elmore, 111
Ohio St. 3d 515, 2006-Ohio-6207, ¶ 62. In making such a determination, the focus is upon
the fairness of the trial, not upon the culpability of the prosecutor. State v. Gray, 12th Dist.
Butler No. CA2011-09-176, 2012-Ohio-4769, ¶ 57. A finding of prosecutorial misconduct
will not be grounds for reversal unless the defendant can demonstrate that she has been
denied a fair trial because of the prosecutor's prejudicial remarks. State v. Smith, 12th Dist.
Warren No. CA2017-02-013, 2017-Ohio-7540, ¶ 29.
{¶ 69} It is undisputed that Shearer's trial counsel did not object to the prosecutor's
comments made during the state's rebuttal closing argument now at issue, thereby waiving
all but plain error. State v. Warwick, 12th Dist. Preble No. CA2017-01-001, 2018-Ohio-139,
¶ 30. Pursuant to Crim.R. 52(B), "plain errors or defects affecting substantial rights may be
noticed although they were not brought to the attention of the court." Plain error does not
exist unless the error is obvious and, but for the error, the outcome of the trial would have
been different. State v. Yanez, 12th Dist. Butler No. CA2016-10-190, 2017-Ohio-7209, ¶
23. Notice of plain error must be taken with utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice. State v. Baldev, 12th
Dist. Butler No. CA2004-05-106, 2005-Ohio-2369, ¶ 12. Prosecutorial misconduct may rise
to the level of plain error only if it is clear from the record that the defendant would not have
been convicted in the absence of the improper comments. State v. Israel, 12th Dist. Butler
No. CA2010-07-170, 2011-Ohio-1474, ¶ 43.
{¶ 70} Shearer claims the prosecutor engaged in misconduct during the state's
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rebuttal closing argument by impermissibly denigrating the role of her trial counsel.
Specifically, Shearer takes issue with the prosecutor stating the following during the state's
rebuttal closing argument:
In fact, [Shearer's trial counsel] wanted to be a witness so bad
in this case he was sending letters to witnesses trying to contact
them. But what he doesn't tell you is the second half of that
sentence which is contact me, but I'm not going to tell you why.
Get in touch with me, but I'm not going to give you any indication
as to why I want you to do so. Collect this door, but I can't tell
you why. That's the other half.
{¶ 71} Shearer claims this "personal attack" on her trial counsel was an attempt by
the prosecutor to "criticize [her trial counsel's] arguments, tactics, and his person," which
had the potential to "dangerously taint" the jury's view of her trial counsel and of her entire
defense strategy.
{¶ 72} Shearer, however, in challenging the prosecutor's statement set forth above,
conveniently ignores the prosecutor's statements made immediately preceding, wherein the
prosecutor stated:
You know, it's interesting, when we started back on Monday,
one of the things we talked about [is] the fact that the Court and
everybody has a different role. The jury is the judges or the
decider of the facts. The Judge tells you what the law is. And I
thought, it's always been my understanding, that the attorneys
are simply here to present to you what the evidence is, not to
double as witnesses, not to substitute in as experts, not to
interject themselves into the proceedings. Because everything
I just heard [during Shearer's trial counsel's closing argument]
was far different than the actual testimony that came out during
this trial.
{¶ 73} After a thorough review of the record, and when taking the prosecutor's
comments in conjunction with the trial court proceedings as a whole, we can find no
instances of prosecutorial misconduct in these challenged statements, nor in any other
statements made by the prosecutor during the state's closing argument. Rather, just as the
state aptly notes as part of its appellate brief, the prosecutor's comments "were properly
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responsive to the issue that counsel had argued at length;" namely, that the investigating
officers assumed Shearer's guilt from the outset, thus ignoring potential exculpatory
evidence even when questioned about that evidence by her trial counsel in the time leading
up to trial. While the record is replete with examples exhibiting this defense strategy, we
need look no further than Shearer's trial counsel's own closing argument, during which he
began by stating, in pertinent part, the following:
This case is about a search for the truth. * * * This is about a
search for the truth. State of Ohio has a burden to prove, and
this, what the lead detective told you. "You didn't care to call
me back on the investigation, did you?" And I'm paraphrasing,
but her answer was not paraphrased. "It's not that I didn't care,
I just didn't do it." The State of Ohio has the burden to prove.
This is a search for truth. It is not a search for – well, we've got
to stop this and move on, it's (indiscernible). It is a search for
the truth and this is the lead detectives final answer on cross-
examination. "It's not that I didn't care, I just didn't do it." They
have the burden, not the Defense. They have the burden.
Continuing, Shearer's trial counsel then stated:
Why didn't you follow up on the investigation? Why didn't you
call me back? They're asking you to find [Shearer] guilty of
murder. Very serious case and they don't even care about
calling [or returning our] phone call; it's because they want you
to carry the water. Thank goodness for juries because your job
is to look at everything and determine, to be fair, what's
reasonable, what's not reasonable, what's truth, what's not truth,
and search for the truth. And ultimately at the end of the day,
that's what a just verdict is, searching for the truth, not searching
for accountability, and definitely not just not doing it.
Shearer's trial counsel later reiterated this same point when he stated:
Detectives knew immediately this could have been a self-
defense case, immediately. So when they come up here and
say, "Well, I didn't return phone calls. I didn't know." I don't
know why they didn’t return [our] phone calls. It just blows my
mind in a murder case. But I digressed.
{¶ 74} By repeatedly questioning the investigating officers' tactics, which included
interjecting his own credibility, thus implying that there may have been relevant, exculpatory
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evidence that had been ignored by the police, the prosecutor would have been remiss had
he not refuted such allegations, even if such comments referenced Shearer's trial counsel's
actions leading up to trial. The prosecutor's comments, which we note spanned only a
portion of a single page of the state's otherwise lengthy rebuttal closing argument, do not
amount to prosecutorial misconduct, nor can it be said the prosecutor's comments
contributed in any way to the jury's finding of guilt. Simply stated, even if the prosecutor
had not made these comments, the record contains ample evidence to support the jury's
verdict finding Shearer guilty as charged. Therefore, finding no error, let alone plain error,
Shearer's second assignment of error alleging prosecutorial misconduct is without merit
and overruled.
{¶ 75} Assignment of Error No. 4:
{¶ 76} THE COURT ERRED BY NOT ALLOWING APPELLANT'S EXPERT
WITNESS TO TESTIFY THAT APPELLANT SUFFERED FROM BATTERED-WOMAN'S
SYNDROME.
{¶ 77} In her fourth assignment of error, Shearer argues the trial court erred by "not
allowing" her expert, Dr. Manges, to specifically testify that she "suffered" from battered-
woman's syndrome at trial. However, as a simple review of the record reveals, Shearer's
trial counsel never asked Dr. Manges whether Shearer "suffered" from battered-woman's
syndrome at trial, much less proffered Dr. Manges' answer to such a question if it had been
asked. Rather, it was Shearer's trial counsel himself who so limited Dr. Manges' testimony.
{¶ 78} As the record indicates, immediately prior to questioning Dr. Manges,
Shearer's trial counsel notified the trial court that whether Shearer suffered from battered-
woman's syndrome was "the jury's decision to make" so "he will go through what it is and
the essential qualifications that he looks for and things of that nature." As a result, although
the trial court may have agreed with this proposition, any error that may have occurred was
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clearly invited by Shearer's trial counsel. Under the invited error doctrine, which is applied
when trial counsel is "actively responsible" for the trial court's alleged error, a party is not
entitled to take advantage of an error that he himself invited or induced the trial court to
make. State v. Wesley, 12th Dist. Butler No. CA2015-04-077, 2015-Ohio-5031, ¶ 26. Such
is the case here.
{¶ 79} Regardless, even if invited error did not apply in this case, as noted by the
state, the totality of Dr. Manges' testimony elicited at trial was to the effect that Shearer
"suffered" from battered-woman's syndrome. As noted above, although never expressly
stating his opinion as to whether Shearer suffered from battered-woman's syndrome, Dr.
Manges testified that his testing revealed she was suffering from trauma and emotional
distress. In so finding, Dr. Manges testified he came to this result after discussing the
alleged incidents of abuse, thus indicating Shearer was an individual whom he believed
was suffering from battered-woman's syndrome. Therefore, even if invited error did not
apply to this case, based on the facts and circumstances here, we can find no error requiring
Shearer's conviction be reversed. Accordingly, finding no error within the trial court
proceedings, Shearer's fourth assignment of error is without merit and overruled.
Conclusion
{¶ 80} In light of the foregoing, having found no merit to any of the arguments raised
by Shearer within her four assignments of error, Shearer's conviction for murdering her ex-
husband, Tony, is affirmed.
{¶ 81} Judgment affirmed.
HENDRICKSON and PIPER, JJ., concur.
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