State v. Bowman , 2014 Ohio 3851 ( 2014 )

[Cite as State v. Bowman, 2014-Ohio-3851.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-11-1300
Appellee Trial Court No. CR0200803583
v.
Robert Bowman DECISION AND JUDGMENT
Appellant Decided: September 5, 2014
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Spiros P. Cocoves, for appellant.
*****
OSOWIK, J.
{¶ 1} This is an appeal from a judgment of the Lucas County Court of Common
Pleas, which convicted appellant of murder in the first degree, in violation of R.C.
2901.01. For the reasons set forth below, this court affirms the judgment of the trial
court.
{¶ 2} Appellant, Robert Bowman, sets forth the following six assignments of
error:
1) THE TRIAL COURT ERRED TO THE PREJUDICE OF MR.
BOWMAN BY FAILING TO EITHER CONSIDER A JURY TO
DETERMINE MR. BOWMAN’S COMPETENCE TO STAND TRIAL
OR TO HAVE THE TRIAL JURY MAKE THAT DETERMINATION IN
VIOLATION OF HIS DUE PROCESS RIGHTS UNDER THE FIFTH,
SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION AND THE APPLICABLE PORTIONS OF
THE OHIO CONSTITUTION.
2) TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE
OF COUNSEL TO MR. BOWMAN BY FAILING TO BRING TO THE
TRIAL COURT’S ATTENTION THE STATUTES IN EFFECT IN 1967
IN VIOLATION OF HIS RIGHT TO COUNSEL, TO A FAIR AND
RELIABLE TRIAL AND HIS DUE PROCESS RIGHTS UNDER THE
FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION AND THE APPLICABLE
PORTIONS OF THE OHIO CONSTITUTION.
3) THE TRIAL COURT ERRED TO THE PREJUDICE OF MR.
BOWMAN WHEN IT ORDERED HIM TO PAY UNSPECIFIED COSTS,
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INCLUDING COURT APPOINTED FEES, WITHOUT FIRST
DETERMINING THE ABILITY TO PAY THOSE COSTS.
4) A CRIMINAL DEFENDANT IS DENIED DUE PROCESS AND
THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHERE
THE ACTIONS OF HIS TRIAL COUNSEL FALL BELLOW ANY
ACCEPTED STANDARD OF COMPETENCE IN VIOLATION OF HIS
FIFTH, SIXTH, EIGHTH, NINTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION AND
THE APPLICABLE PORTIONS OF THE OHIO CONSTITUTION.
5) PROSECUTORIAL MISCONDUCT DURING THE TRIAL
DEPRIVED MR. BOWMAN OF A FAIR AND RELIABLE TRIAL OR,
IN THE ALTERNATIVE, TRIAL COUNSEL WAS INEFFECTIVE IN
FAILING TO OBJECT, BOTH IN VIOLATION OF HIS RIGHTS
UNDER THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO
THE UNITED STATES CONSTITUTION AND THE
CORRESPONDING PROVISIONS OF THE OHIO CONSTITUTION.
6) CUMULATIVE ERRORS DEPRIVE A CRIMINAL
DEFENDANT AND CRIMINAL APPELLANT OF A FAIR TRIAL IN
VIOLATION OF HIS RIGHTS UNDER THE FIFTH, SIXTH, AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
3.
CONSTITUTION AND THE CORRESPONDING PROVISIONS OF THE
OHIO CONSTITUTION.
{¶ 3} The following undisputed facts are relevant to this appeal. In December
1967, Eileen Adams, a 14-year-old girl from Sylvania, Ohio, was a freshman at Central
Catholic High School in Toledo. Each afternoon, Eileen would take a city bus from
Central to a bus stop several blocks from her older sister’s West Toledo home off of
Sylvania Avenue.
{¶ 4} One of Eileen’s classmates rode on the same bus home with her each day,
although the stop at which the other Central student would exit the bus was several
blocks prior to Eileen’s stop. Eileen’s father would later pick her up at her sister’s home
on his commute home from work. On the afternoon of December 18, 1967, Eileen got
off the bus along Sylvania Avenue at her usual bus stop. However, Eileen never arrived
at her sister’s home. Eileen disappeared along the short walk from the drop-off site to her
sister’s nearby home.
{¶ 5} Following her disappearance, Eileen’s panicked family notified the Toledo
Police Department. Eileen remained missing and her fate unknown for approximately
five weeks. At the end of January 1968, a Michigan hunter discovered her brutally
murdered body in a rural wooded area of Monroe County, Michigan.
{¶ 6} Eileen’s body was recovered wrapped in a bed sheet and placed inside of a
rolled up rug. Significantly, a cord was wrapped around her feet, running around her
neck so as to form a “death tie” designed to strangle her if she attempted to straighten her
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legs. In addition, she had been struck in the head repeatedly with a hammer to such a
degree of force that her skull was split. White dog hair and human DNA evidence was
recovered from the body. Notably, no one in Eileen’s family owned a dog.
{¶ 7} The initial police investigation into Eileen’s murder failed to provide any
productive leads or suspects. The case eventually became an unsolved, cold case.
However, approximately 15 years later, in December of 1981, a former West Toledo
resident named Margaret Bowman voluntarily appeared at the Toledo Police Department
advising that she possessed vital information about the unsolved murder.
{¶ 8} Bowman advised the police that she had previously been married to
appellant, Robert Bowman. She went on to reveal that at the time of the 1967 murder,
the couple resided with their white dog in a home along Sylvania Avenue in West Toledo
in close proximity to where the victim went missing. The Bowman home was located on
the route the victim walked daily from her bus drop off point to her sister’s nearby home.
{¶ 9} Significantly, Margaret Bowman disclosed that in December of 1967, while
working around the home that she shared with appellant, she began hearing muffled
noises coming from the fruit cellar in the basement. She investigated the strange noises
and went inside the cellar. Once inside, she discovered an unknown teenage girl, later
determined to be the victim, hanging from the cellar wall with her “arms stretched out
like Jesus.” Eileen was still alive at this point but could not speak because her mouth was
taped shut. Margaret conceded that she did not rescue the girl who she discovered being
held captive in her home.
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{¶ 10} After seeing the girl restrained in the cellar, Margaret screamed and ran
upstairs. Once upstairs, Margaret was confronted by her husband, the appellant.
Appellant noxiously screamed at Margaret that she was “getting in his business” and
“now he had to kill her [the victim].” Appellant immediately proceeded down into the
basement where the victim was being held and turned a radio up extremely loud. Eileen
was murdered with multiple hammer blows to the head.
{¶ 11} Upon emerging from the basement, appellant made Margaret drive their car
north, going into Southern Michigan. In Michigan, appellant removed the body from the
trunk and dumped it in a rural wooded area. Appellant threatened to kill Margaret and
their baby if she revealed these events to anyone. The body was discovered by a hunter
approximately five weeks later.
{¶ 12} Margaret complied with appellant’s threats against her and remained silent
for roughly 15 years. Margaret subsequently left appellant in 1978. She returned to
Toledo and in 1981 she reported the above-described 1967 events that she had witnessed
in her home involving appellant to the Toledo Police Department.
{¶ 13} After Margaret’s 1981 revelations, the Toledo Police Department began a
search for appellant. Appellant was ultimately located in a former restaurant in Florida.
Appellant was taken to a police station where he was questioned about the unsolved 1967
Toledo murder.
{¶ 14} Significantly, in the restaurant where appellant was discovered, the
detectives observed a Spiderman doll hung upside down, with its hands and feet bound,
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and a small nail driven through the front of its head. The doll was arranged in the precise
manner in which Eileen Adams was bound and killed in Toledo in 1967.
{¶ 15} Appellant revealingly advised the officers to take special note of the hands
and feet of the doll during the discussions of Eileen’s murder. In addition, appellant
conceded to having a white dog living in his home at the time of Eileen’s disappearance
and murder. Nevertheless, at this juncture, it was determined that there was not enough
evidence to arrest and prosecute appellant. The case remained officially unsolved for
another twenty-five years.
{¶ 16} In 2006, the Toledo Police Department again reopened the case. Given
interim advancements in DNA technology, detectives were now able to test the semen
recovered from Eileen’s underwear. Additional comparative DNA was voluntarily
obtained from Margaret Bowman and her child. The testing established that appellant’s
DNA matched the semen found in the victim’s underwear worn at the time of the killing.
The likelihood of this match was one in 4,158,000.
{¶ 17} On October 31, 2008, based upon the newly established DNA evidence,
appellant was indicted on one count of murder in the first degree, in violation of R.C.
2901.01, for the unsolved 1967 murder of Eileen Adams.
{¶ 18} On November 26, 2008, appellant was referred for an evaluation to
determine his competency to stand trial. Dr. Charlene Cassel performed the first
evaluation of appellant. Cassel determined that appellant was capable of understanding
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the nature and objective of the proceedings against him. Based on Cassel’s report, the
trial court found appellant competent to stand trial.
{¶ 19} On January 18, 2011, the trial court referred appellant for a second
competency evaluation by Dr. Wayne Graves. Graves likewise concluded that appellant
was capable of understanding the proceedings. Accordingly, the trial court considered all
of the evidence on the competency issue and found appellant to be competent to stand
trial.
{¶ 20} On August 8, 2011, the case first proceeded to a jury trial. The court
declared a mistrial given the jury’s inability to reach a verdict. On October 28, 2011, a
second jury trial was conducted. At the conclusion of the second jury trial, appellant was
found guilty and was sentenced to life imprisonment. This appeal ensued.
{¶ 21} Appellant’s first two assignments of error are both prefaced upon the
contention that appellant was entitled to a jury determination, rather than a bench
determination, of his competency to stand trial. We note at the outset that both at the
time of the 1967 murder and at the time of appellant’s 2011 trial, no statutory mandate
existed requiring a jury to determine the competency of an individual to stand trial.
{¶ 22} The relevant portion of the statute in effect in 1967 at the time of the
commission of the homicide stated:
§ 2945.37 Inquiry into insanity of defendant. (GC § 1344-1)
If the attorney for a person accused of crime whose cause is pending
in the court of common pleas, before or after trial suggests to the court that
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such person is not then sane, and a certificate of a reputable physician to
that effect is presented to the court, or if the grand jury represents to the
court that any such person is not then sane or if it otherwise comes to the
notice of the court that such person is not then sane, the court shall proceed
to examine into the question of the sanity or insanity of said person, or in its
discretion may impanel a jury for such purpose. If three fourths of such
jury agree upon such a verdict, such verdict may be returned as the verdict
of the jury. If there is a jury trial and three fourths of the jury do not agree,
another jury may be impaneled to try such question.
{¶ 23} Although appellant argues that this statute established a vested right to a
jury trial on the issue of competency, its express language is clearly discretionary. Thus,
when the discretionary jury provision was removed from the statute effective
November 1, 1978, the amendment did not impair a vested right or impose new or
additional burdens, duties, obligations, or liabilities that would be unconstitutionally
retroactive. Bielat v. Bielat, 87 Ohio St.3d 350, 359, 721 N.E.2d 28 (2000).
{¶ 24} Furthermore, the Supreme Court of Ohio has consistently applied the
version of R.C. 2945.37 in effect at the time of trial. In State v. Chapin, 67 Ohio St.2d
437, 424 N.E.2d 317 (1981), appellant was indicted on October 18, 1978, on an
aggravated murder charge. The case proceeded to trial with a finding of guilty on
March 7, 1979. In the interim, R.C. 2945.37 was amended, effective November 1, 1978.
The court went on to make its determination without analysis, “pursuant to the present
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R.C. 2945.37.” Id. at 441. Also, in State v. Were, 94 Ohio St.3d 173, 2002-Ohio-481,
761 N.E.2d 591, the court applied the provisions of R.C. 2945.37 that were in effect at
the time of trial. Id. at 174.
{¶ 25} Present R.C. 2945.37, which is the relevant and controlling statute in effect
at the time of appellant’s trial, clearly establishes that the trial court determines questions
of competency. R.C. 2945.37 establishes in relevant part, “If the issue is raised before
trial, the court shall hold a hearing on the issue * * * If the issue is raised after the trial
has commenced, the court shall hold a hearing on the issue only for good cause shown *
* *.”
{¶ 26} Notably, the statute in no way authorizes the trial court to impanel a jury to
determine the competency of a defendant to stand trial on any basis, mandatory or
discretionary. Wherefore, we find that the trial court did not err in conducting a bench
determination of competency. Appellant’s first assignment of error is found not well-
taken.
{¶ 27} Similarly, given our determination that appellant had no right to a jury
ruling on competency, the failure of counsel to request a course of action to which
appellant was not entitled cannot constitute ineffective assistance of counsel. Wherefore,
we find appellant’s related second assignment of error not well-taken.
{¶ 28} In the third assignment of error, appellant asserts that the imposition of
“unspecified” costs, including court appointed fees, without first determining the ability
to pay these costs, is erroneous.
10.
{¶ 29} The trial court found that appellant had, “or reasonably may be expected to
have, the means to pay all or part of the applicable costs of supervision, confinement,
assigned counsel, and prosecution, as authorized by law.” Accordingly, appellant was
ordered to “pay the cost assessed pursuant to R.C. 9.92(C), 2929.18 and 2851.021.”
{¶ 30} R.C. 2947.23 not only permits a court to assess costs against an indigent
defendant, “it requires a court to assess costs against all convicted defendants.” State v.
White, 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶ 8 (emphasis in original).
This encompasses the cost of prosecution and jury fees. R.C. 2947.23(A).
{¶ 31} A sentencing court may waive these costs for an indigent defendant, but, to
preserve the issue, a motion for a waiver of costs must be made at the time of sentencing.
State v. Threatt, 108 Ohio St.3d 277, 843 N.E.2d 164, 2006-Ohio-905, paragraph two of
the syllabus. In this matter, there is nothing in the record to suggest that appellant moved
to waive the R.C. 2947.23 costs at the sentencing hearing. As a result, there was no
impropriety in the court’s imposition of prosecution costs and jury fees.
{¶ 32} R.C. 9.92 requires that specific courts impose a one dollar additional court
cost to fund the citizen’s reward fund. The fee is mandatory; however, “in the court’s
discretion, may remit this one dollar additional court costs to the offender.” R.C.
9.92(C)(1). The statute provides for no means test. Since the decision to remit is
discretionary, a court’s failure to remit will not be disturbed on appeal absent an abuse of
discretion. An abuse of discretion is more than a mistake of law or a factual error, the
term connotes that the court’s attitude is arbitrary, unreasonable or unconscionable.
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Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983). We cannot find an abuse of
discretion for failure to remit when, as here, there was no request for remission from
appellant before the trial court.
{¶ 33} R.C. 2951.021 permits a sentencing court that places a felony offender
under a community control sanction to require the offender to pay a maximum $50
monthly supervision fee as a condition of parole. No means test is stated. Imposition is
in the discretion of the court. Appellant fails to articulate how imposition of this fee
constitutes an abuse of discretion.
{¶ 34} R.C. 2929.18(A)(5)(ii) provides that a sentencing court may impose as a
financial sanction, “[a]ll or part of the costs of confinement * * * provided that the
amount of reimbursement ordered under this division shall not exceed the total amount of
reimbursement the offender is able to pay as determined at a hearing and shall not exceed
the actual cost of the confinement * * *.” However, “[b]efore imposing a financial
sanction under [R.C. 2929.18], the court shall consider the offender’s present and future
ability to pay the amount of the sanction or fine.” R.C. 2929.19(B)(6). We have held
that while a sentencing court is not required to hold a hearing when determining whether
to impose a financial sanction under this provision, the record must contain some
evidence that the court considered the offender’s ability to pay such a sanction. State v.
Lamonds, 6th Dist. Lucas No. L-03-1100, 2005-Ohio-1219, ¶ 42.
{¶ 35} The recovery of appointed counsel fees is governed by R.C. 2941.51(D)
which provides that such fees, “* * * shall not be taxed as part of the costs and shall be
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paid by the county. However, if the person represented has, or reasonably may be
expected to have, the means to meet some part of the cost of the services rendered to the
person, the person shall pay the county an amount that the person reasonably can be
expected to pay.” Again, no hearing on this matter is expressly required, but the court
must enter a finding that that the offender has the ability to pay and that determination
must be supported by clear and convincing evidence of record. State v. Knight, 6th Dist.
Sandusky No. S-05-007, 2006-Ohio-4807, ¶ 6-7.
{¶ 36} Although the trial court entered the requisite findings in this matter, no
hearing was held on appellant’s ability to pay. Except for an affidavit of indigency, there
was no evidence presented of appellant’s ability to pay.
{¶ 37} There was no presentence report. Although the record does contain three
competency reports, none of them furnish evidence of appellant’s ability to pay any costs.
These reports would support a contrary finding.
{¶ 38} Absent evidence in the record supporting the trial court’s finding that
appellant had, or could reasonably in the future be expected to have, the ability to pay the
cost of his confinement or his appointed attorney fees, appellant’s third assignment is
found well-taken to the extent that these fees were imposed.
{¶ 39} In the fourth assignment of error, appellant again asserts that he received
ineffective assistance of counsel. In support, it is maintained that trial counsel should
have inquired about appellant’s substance abuse and retained an expert in drug and
alcohol abuse.
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{¶ 40} To prevail on an ineffective assistance of counsel claim, appellant must
establish that trial counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial court cannot be relied upon as having produced a just
result. Appellant must show that counsel’s representation fell below an objective standard
of reasonableness to such an extent that, but for counsel’s perceived errors, the results of
the proceeding would have been different. State v. Plassman, 6th Dist. Fulton No F-07-
036, 2008-Ohio-3842, ¶ 29.
{¶ 41} The record reflects that appellant’s argument of ineffective assistance of
counsel in connection to drugs and alcohol is based solely upon conjecture. The record is
devoid of any objective evidence that appellant abused drugs or alcohol at any relevant
time or that a drug and alcohol expert would have provided any outcome determinative
information. Wherefore, we find appellant’s fourth assignment of error not well-taken.
{¶ 42} In the fifth assignment of error, appellant asserts that alleged prosecutorial
misconduct during closing arguments deprived him of a fair trial. It is well-established
that the controlling test for prosecutorial misconduct is whether the disputed remarks
were improper and, if so, whether they prejudicially affected substantial rights of the
accused. State v. Eley, 77 Ohio St.3d 174, 187, 672, N.E.2d 640 (1996).
{¶ 43} Generally, prosecutors are entitled to considerable latitude in opening and
closing arguments. State v. Balew, 76 Ohio St.3d 244, 667 N.E.2d 369 (1996). During
closing arguments, the prosecution is free to comment upon that which the evidence has
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shown and any reasonable inferences that can be drawn therefrom. State v. Lott, 51 Ohio
St.3d 160, 555 N.E.2d 293 (1990).
{¶ 44} Most significantly, any purported misconduct of counsel during closing
arguments must be considered in the context of the entire case to determine if it resulted
in actual prejudice to the defendant. State v. Lorraine, 66 Ohio St.3d 414, 613 N.E.2d
212 (1993). Notably, as most relevant to the instant case, the Supreme Court of Ohio has
found no impropriety in prosecutorial calls for justice during closing arguments. State v.
Williams, 8th Dist. Cuyahoga No. 95796, 2011-Ohio-5483, ¶ 47; citing State v. Hill, 75
Ohio St.3d 195, 661 N.E.2d 1068 (1996).
{¶ 45} Appellant characterizes certain statements made by the prosecution during
closing arguments as “disparaging,” and “overblown rhetoric.” The record belies these
claims. For example, the record shows that during closing arguments the prosecution
stated,
He also did what, no disrespect to [defense counsel], a very common
defense tactic is he basically says don’t look at the evidence they have, look at
what they didn’t do. Focus on that. I’m going to ask you to focus on the evidence
that we did in fact present to you.
{¶ 46} In addition, the prosecution conveyed,
Because we’re coming up on December 18th of this year, 44 years
that there’s been no closure and no justice for Eileen Adams. I submit to
you that you’re now going to get the case, and that if your verdict is just
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and provides closure to the Adams family that it will be a verdict of guilty
as charged.
{¶ 47} We have carefully considered allegations of prosecutorial misconduct in
this matter. We find that the record of evidence reflects no impropriety in the disputed
statements by the prosecution during closing arguments and no prejudice to appellant.
Wherefore, we find appellant’s fifth assignment of error not well-taken.
{¶ 48} In appellant’s sixth assignment of error, he asserts that he was denied a fair
trial due to alleged cumulative errors of the trial court. In essence, appellant contends
that all prior claimed assignments of error collectively constitute prejudicial error.
{¶ 49} The Ohio Supreme Court has delineated the cumulative error doctrine as,
“although violations of evidence during trial, singularly, may not rise to the level of
prejudicial error, a conviction will be reversed where the cumulative effect of the errors
deprives a defendant of the constitutional right to a fair trial.” State v. DeMarco, 31 Ohio
St.3d 191, 509 N.E.2d 1256 (1987).
{¶ 50} In this case, we found no instances of trial court error in our determinations
in response to the first five assignments of error beyond error in connection to imposition
of costs which does not constitute prejudicial error. Appellant’s sixth assignment of error
is found not well-taken.
{¶ 51} On consideration whereof, we find that substantial justice has been done in
this matter. The judgment of the Lucas County Court of Common Pleas is hereby
affirmed, in part, and reversed, in part. The portion of the court’s sentencing order
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requiring appellant to pay the cost of his confinement and appointed attorney fees is
vacated. The matter is remanded to the trial court for further proceedings consistent with
this decision. Appellant and appellee are hereby ordered to share equally the court costs
of this appeal pursuant to App.R. 24.
Judgment affirmed, in part,
and reversed, in part.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. _______________________________
JUDGE
Stephen A. Yarbrough, P.J.
_______________________________
James D. Jensen, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
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