State v. Essa , 194 Ohio App. 3d 208 ( 2011 )

[Cite as State v. Essa, 194, Ohio App.3d 208, 2011-Ohio-2513.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 94826
THE STATE OF OHIO,
APPELLEE,
v.
ESSA,
APPELLANT.
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-476832
BEFORE: Celebrezze, P.J., Jones, J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: May 26, 2011
William D. Mason, Cuyahoga County Prosecuting Attorney, and
Matthew E. Meyer and Anna M. Faraglia, Assistant Prosecuting Attorneys, for appellee.
Stephen L. Miles, for appellant.
FRANK D. CELEBREZZE JR., Presiding Judge.
{¶ 1} Yazeed Essa, appellant, appeals his conviction for the aggravated murder of
his wife, Rosemarie Essa. After a review of the record and pertinent law, we affirm
appellant’s conviction.
Procedural History
{¶ 2} On February 7, 2006, appellant was indicted by the Cuyahoga County Grand
Jury on one count of aggravated murder in violation of R.C. 2903.01(A), accusing him of
purposely, and with prior calculation and design, causing the death of Rosemarie on
February 24, 2005. On October 6, 2006, authorities in Lanarca, Cyprus, arrested
appellant while he was traveling under a false Lebanese passport. Appellant fought
extradition in Cyprus until December 12, 2008, when the Cypriot Minister of Justice
issued an official surrender warrant. Appellant was transported to Cuyahoga County on
January 9, 2009, and the trial court arraigned him on January 14, 2009, setting bond at
$75,000,000.
{¶ 3} A jury trial commenced on January 19, 2010, and lasted until March 8, 2010,
when the jury returned a verdict of guilty of aggravated murder, as charged in the
indictment. On March 10, 2010, the trial court conducted a sentencing hearing, during
which appellant was sentenced to life in prison with parole eligibility after 20 years.
Statement of Facts
{¶ 4} On February 24, 2005, Rosemarie called her long-time friend, Eva
McGregor, at 1:53 p.m. while McGregor was at work and Rosemarie was driving to meet
her sister at a movie. McGregor testified that Rosemarie told her that she was running
late and was feeling nauseous:
{¶ 5} “She said that she had taken a calcium pill right before she left her house.
And I said, calcium. I said, When did you start taking calcium?
{¶ 6} “And she said, well, she was at [appellant]’s family, and they had a
discussion that because of her age she should start to take calcium, and she said she really
didn’t want to take it, and she said that she was rushing out the door. He said, here, take
it. Take your calcium.
{¶ 7} “And then she said I just — that I took it, and she said now, I don’t know if
that’s what’s making me sick. * * * She said to me that she was going to call [appellant]
and ask him if the calcium pill he gave her could be making her sick. Could be making
her feel so nauseous.”
{¶ 8} Shortly after Rosemarie’s conversation with McGregor, Rosemarie was
involved in an automobile accident. At trial, Tera Tanski testified that she witnessed
Rosemarie’s black Volvo veer off the road and hit another car, slow down, and veer back.
Rosemarie’s car was going so slowly that Tanski got out of her own car, chased the
Volvo on foot, opened Rosemarie’s door, and brought the car to a stop. Rosemarie’s
eyes were open but glassy, and she did not speak. Tanski testified that she held
Rosemarie’s jaw while Rosemarie vomited on her leg and on the pavement.
{¶ 9} Thereafter, Rosemarie was rushed to Hillcrest Hospital and was pronounced
dead within a half hour of her arrival at the hospital. Eric White, D.O., testified that on
February 24, 2005, he treated Rosemarie at the emergency room of Hillcrest Hospital.
Dr. White testified that Rosemarie had arrived by ambulance and had reportedly been in a
minor motor-vehicle accident. When Rosemarie arrived at the hospital, she had shallow
breathing and erratic heartbeat, and was unresponsive; however, she had no major signs
of trauma. After 30 to 40 minutes of attempting to revive Rosemarie, Dr. White saw no
signs of improvement. After a discussion, appellant told Dr. White to “just call it,” and
Dr. White agreed to stop trying to revive Rosemarie. Dr. White stated that at the time of
Rosemarie’s death, there was nothing about her symptoms that indicated cyanide
poisoning; however, the cause of her death was a mystery to Dr. White based on the low
impact of the motor-vehicle accident and the lack of major signs of trauma.
{¶ 10} Rosemarie’s brother, Dominic DiPuccio, learned of Rosemarie’s car
accident when appellant called to find out if he could drop his children off at Dominic’s
home on the way to the hospital. Julie DiPuccio, appellant’s sister-in-law, stated that
appellant was in such a hurry that his daughter was not fully dressed. When the
DiPuccios arrived at the hospital, they learned that Rosemarie was not going to make it.
As more people arrived at the hospital, the family decided to have everyone gather at
Rosemarie’s house. At that time, Dominic received a call from McGregor. Upon
learning that Rosemarie had died, McGregor told Dominic about the conversation she had
had with Rosemarie just moments before her death and Rosemarie’s belief that the
calcium pills caused her nausea. This information caused Dominic to demand that a full
autopsy and toxicology testing be done by the county coroner the following day.
{¶ 11} Forensic pathologist, Elizabeth Balraj, M.D., was the elected county coroner
at the time David Dolinak, M.D., performed Rosemarie’s autopsy on February 25, 2005.
At the time of the autopsy, there was no indication of any injuries, and an internal
examination showed no evidence of trauma. As a result, Dr. Balraj was unable to
determine Rosemarie’s cause of death at the time of her autopsy and referred the matter
for toxicology screening. The normal toxicology screens did not reveal any unusual
substances in Rosemarie’s system.1
{¶ 12} On March 17, 2005, appellant voluntarily met with Detective Gary McKee
of the Highland Heights Police Department and gave him a statement concerning his
wife’s death. McKee testified that at the time he interviewed appellant, he did not
suspect that appellant had anything to do with Rosemarie’s death. In the course of the
interview, appellant informed McKee that Rosemarie had been taking prenatal vitamins
and calcium supplements. Later that evening, McKee followed appellant to his home
and retrieved Rosemarie’s prenatal vitamins and calcium supplements. McKee testified
that prior to appellant’s handing the pills over to him, appellant asked why he was
collecting the pills, and McKee responded, “Well, you know my boss told me I should
collect these so we can do a complete — we cover all the bases.”
1 The initial toxicology screen tested Rosemarie’s blood for signs of alcohol or
drug abuse. Additionally, the screening looks for signs of prescription drugs taken
by the individual tested. The initial screens will not indicate signs of specific
poisons, such as cyanide.
{¶ 13} Firas Essa, appellant’s brother, testified that after appellant’s March 17,
2005 interview with the Highland Heights Police Department, he helped appellant flee the
United States. Firas testified that appellant wanted to get out of town because he was
concerned that people would find out about his extramarital affairs with Marguerite
Montanez and Michelle Stephens. Firas enlisted the help of his cousin, Sam Qasem, who
had experience smuggling fugitives out of the country. They concocted a ruse to go to
Detroit with appellant to gamble, where appellant would cross the border into Canada.
To explain his absence, appellant supplied a phony story that a friend had been injured in
North Carolina.
{¶ 14} Appellant’s cousin, Abraham Awad, accompanied the group to Detroit for
what he thought would be a gambling trip. Awad rode in a car with Sam Qasem, Firas,
and appellant. During the car ride, appellant explained that he was running from the
authorities and why he was running:
{¶ 15} “Q. And did [appellant] at that time, in the car ride, indicate to you why the
police asking him about [Rosemarie]’s death would cause him or trigger him to want to
leave the country?
{¶ 16} “A. He stated he was scared, that he was nervous.
{¶ 17} “Q. Afraid of what?
{¶ 18} “A. Afraid of being implicated in the death, blamed for [Rosemarie]’s
death.
{¶ 19} “Q. And how would he be blamed for [Rosemarie]’s death?
{¶ 20} “A. I guess they found some pills in the house.
{¶ 21} “Q. What about those pills in the house?
{¶ 22} “A. They were laced with calcium or something.
{¶ 23} “Q. Calcium laced?
{¶ 24} “A. I’m sorry, not calcium laced. Cyanide — calcium pills that were
cyanide laced.”
{¶ 25} Once in Canada, Awad arranged for appellant to fly to Lebanon, where he
would be taken care of. When appellant arrived in Lebanon, he assumed the name
George Khalife.
{¶ 26} On March 21, 2005, Dominic filed a missing-persons report for appellant.
On April 7, 2005, Dominic received a phone call from appellant. During that
conversation, appellant told Dominic, “I’m in a really bad place, close to Iran. I talked to
my lawyer, and he told me that they got enough to put me in jail, it could be years before
it’s a trial, and I don’t want to put my family through that, I don’t want to put you guys
through that.” Dominic told appellant, “If you didn’t do anything, you don’t have
anything to worry about. Your children need you.” In response, appellant stated, “You
know, I can’t do that.”
{¶ 27} Douglas Rohde testified that he was employed by the Lake County Crime
Lab and that on March 22, 2005, he inspected the calcium capsules that were retrieved by
McKee. In the course of his inspection, Rohde determined that nine of the 56 capsules
tested contained cyanide.
{¶ 28} Raymond Jorg testified that he is employed as a fingerprint examiner for the
Lake County Forensic Lab and that on April 8, 2005, he examined eight capsules that
contained cyanide for fingerprints. He was able to detect that three of the eight pills had
some fingerprint ridges, but was unable to make a comparison to a known print.
{¶ 29} As a result of the police investigation that revealed cyanide in Rosemarie’s
pills, forensic pathologist, Dr. Dolinak, became concerned that cyanide was a factor in
Rosemarie’s death. On April 21, 2005, a more elaborate screening for signs of poison
was conducted, and the test revealed 9.1 milligrams of cyanide per liter of Rosemarie’s
blood. Additionally, coroner investigators discovered cyanide in bits of vomit taken
from Rosemarie’s car. On April 22, 2005, the Cuyahoga County Coroner’s Office made
a determination that Rosemarie had died as a result of acute cyanide intoxication.
{¶ 30} Michelle, a nurse at Akron General Medical Center, testified that she had
carried on an intimate relationship with appellant beginning in October 2004. Michelle
testified that appellant had been unhappy in his marriage and had planned to leave his
wife. On a regular basis, appellant told Michelle that he loved her. Just days before
Rosemarie’s death, appellant sent Michelle a handwritten Valentine’s Day card that read,
“Happy Valentine’s Day. I can’t wait to see you in this. I have my own selfish reasons
for giving you this gift. Next Valentine’s Day will be all ours. I love you with all my
being.” When Rosemarie died, appellant made a hysterical call to Michelle and asked
her to come to his house to be with him on February 24, 2005. Appellant told Michelle,
“You will be the only mommy that [his children] will remember, and I bet you never
expected this.”
{¶ 31} Marguerite testified that she was employed by appellant’s company, Dish
One Up, and had an on-and-off relationship with appellant. Marguerite stated that on
March 17, 2005, appellant called her while she was babysitting his children at his house
and told her that the police were coming to get Rosemarie’s medications. Thereafter,
appellant arrived at the home with Detective McKee and provided him with various pill
bottles, including the calcium pills. Marguerite testified that after McKee left the house,
appellant “flipped out” and was cussing and angry.
{¶ 32} Jamal Khalife testified that he has lived in Beirut, Lebanon for the past 15
years. In June 2005, Khalife was asked by his brother to pick up appellant from the
airport in Beirut and take care of him. Khalife provided appellant with “five or six” fake
IDs and a place to stay in Beirut. While appellant was in Beirut, Khalife learned that
appellant was wanted by the authorities in the United States. Khalife testified that
appellant told him that he was responsible for the death of Rosemarie. Khalife stated,
“He told me the whole story, from the beginning. * * * that his wife was in the home,
going, I think, to a movie, and he provided two vitamin pills, and down the street she had
a car accident, and she died. * * * and he ground the cyanide, refilled the pills.” When
asked whether appellant gave him an indication as to why he killed his wife, Khalife
stated, “At the beginning I think he said something about she’s cheating on him, or
something like that.” Khalife stated that appellant openly bragged with numerous people
in Lebanon about killing his wife, and he warned appellant to keep his mouth shut, but
appellant would not listen.
{¶ 33} On cross-examination, Khalife acknowledged that he had been indicted on a
29-count federal indictment in October 1994, and he received a plea to lesser charges and
hoped for the possibility of a reduced sentence in exchange for his truthful testimony in
appellant’s case. Additionally, Khalife received immunity in connection with any of his
testimony in this case and his role in harboring appellant.
{¶ 34} Firas testified that on February 24, 2005, he was in Mexico when he
received a call from his frantic brother concerning the death of Rosemarie. Firas
acknowledged that he had pleaded guilty to obstruction of justice and tampering with
evidence in connection with his assistance in helping appellant flee the country.
{¶ 35} Firas stated that appellant had had many girlfriends, including Marguerite
and Michelle, and that he did not believe Rosemarie had any knowledge of appellant’s
affairs. Firas acknowledged that he knew appellant had purchased the calcium pills for
Rosemarie. However, he testified that appellant denied having any involvement in
Rosemarie’s death.
{¶ 36} On cross-examination, Firas testified that appellant was a compulsive
womanizer, both before and after his relationship with Rosemarie. Firas testified that
prior to their marriage, Rosemarie and appellant separated after Rosemarie learned that
appellant was seeing another woman, but appellant won her back by vowing to stay
faithful. Firas testified that after the couple married, appellant continued to cheat, but
kept his affairs secret from Rosemarie. According to Firas, appellant was happy in his
marriage and was a great father to his children.
{¶ 37} On redirect, Firas was asked to explain a January 13, 2009 telephone
recording between himself and appellant, who was in jail, in which appellant asked Firas
about paying an individual “$35,000 to shut up,” and finding a couple of new witnesses
for the prosecutors “to make their heads spin.” Firas explained that he made up
witnesses as a ruse to throw prosecutors “for a loop” and that the $35,000 had to do with
a ten-year-old dispute with a girlfriend. Firas maintained that the $35,000 was not used
to shut up anyone. When asked by the prosecutor if he had engaged in yet another
obstruction-of-justice scheme, the trial court advised Firas of his Fifth Amendment rights.
Thereafter, Firas invoked his Fifth Amendment rights and asked to consult with his
attorney.
{¶ 38} Thirteen days later, Firas returned to complete his testimony. Prior to
taking the stand, trial counsel discussed the matter in chambers, where the state disclosed
that it did not intend to bring further charges against Firas, Omar, or Abe Awad, if Firas
testified truthfully concerning the conversations with his brother. Firas then testified:
{¶ 39} “Q. [D]id you ever have an opportunity to talk with your brother about
Rosie’s death?
{¶ 40} “A. Yes.
{¶ 41} “Q. What did he say to you?
{¶ 42} “A. The second trip is what you’re asking me about, and that’s when he
admitted that he was responsible for [Rosemarie]’s death.
{¶ 43} “Q. What do you mean by admitted that he was responsible for
[Rosemarie]’s death?
{¶ 44} “A. I asked him if he was responsible for her death, and he said yes.
{¶ 45} “Q. What did he tell you that he did?
{¶ 46} “A. He said he put cyanide in the capsules. * * *
{¶ 47} “Q. Why are you here today?
{¶ 48} “A. To testify truthfully.
{¶ 49} “Q. And why is it important that you come here and testify truthfully
today?
{¶ 50} “A. Because if I don’t, I’ll be in violation of my plea agreement, and I
could face substantial prison time.”
{¶ 51} Appellant now appeals his conviction for aggravated murder, raising 11
assignments of error for our review.2
Law and Analysis
Jury Instructions
I
{¶ 52} In his first assignment of error, appellant argues that he was denied his
rights to equal protection and due process when the trial court failed to give a cautionary
jury instruction regarding the testimony of Khalife and Firas. Specifically, appellant
contends that the trial court erred when it refused to grant his request that the court amend
the standard witness-credibility instruction to include language requiring the jury to take
into consideration the substantial plea agreements offered to Khalife and Firas in
exchange for their testimony against appellant.
{¶ 53} “When reviewing a trial court’s jury instructions, the proper standard of
review for an appellate court is whether the trial court’s refusal to give a requested
instruction or giving an instruction constituted an abuse of discretion under the facts and
2 Appellant’s assignments of errors are contained in the appendix to this
opinion.
circumstances of the case. See State v. Wolons (1989), 44 Ohio St.3d 64, 68, 541 N.E.2d
443. In addition, jury instructions are reviewed in their entirety to determine if they
contain prejudicial error. State v. Porter (1968), 14 Ohio St.2d 10, 235 N.E.2d 520.”
State v. Williams, Cuyahoga App. No. 90845, 2009-Ohio-2026, ¶ 50. To constitute an
abuse of discretion, the ruling must be unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140.
{¶ 54} In support of his position, appellant argues that the trial court should have
instructed the jury similarly, if not identically, to the accomplice jury instruction in R.C.
2923.03(D). When an accomplice testifies on behalf of the state in exchange for a plea
agreement, there is a possibility that the accomplice’s testimony may be self-serving and
biased. State v. Small, Cuyahoga App. No. 84768, 2005-Ohio-1316, ¶16, citing State v.
Muntaser, Cuyahoga App. No. 81915, 2003-Ohio-5809. Therefore, R.C. 2923.03(D)
requires that the court give the jury a special instruction on the credibility of accomplices,
as follows:
{¶ 55} “If an alleged accomplice of the defendant testifies against the defendant in
a case in which the defendant is charged with complicity in the commission of or an
attempt to commit an offense, an attempt to commit an offense, or an offense, the court,
when it charges the jury, shall state substantially the following:
{¶ 56} “ ‘The testimony of an accomplice does not become inadmissible because of
his complicity, moral turpitude, or self-interest, but the admitted or claimed complicity of
a witness may affect his credibility and make his testimony subject to grave suspicion,
and require that it be weighed with great caution.
{¶ 57} “ ‘It is for you, as jurors, in the light of all the facts presented to you from
the witness stand, to evaluate such testimony and to determine its quality and worth or its
lack of quality and worth.’ ”
{¶ 58} Alternatively, appellant argues that the trial court should have instructed the
jury similarly, if not identically, to Federal Sixth Circuit Jury Instruction 7.07, which
states:
{¶ 59} “7.07 Testimony of a witness under grant of immunity or reduced criminal
liability.
{¶ 60} “(1) You have heard the testimony of _____. You have also heard that the
government has promised him ______ in exchange for his cooperation.
{¶ 61} “(2) It is permissible for the government to make such a promise. But you
should consider _____’s testimony with more caution than the testimony of other
witnesses. Consider whether his testimony may have been influenced by the
government’s promise.
{¶ 62} “(3) Do not convict the defendant based on the unsupported testimony of
such witness, standing alone, unless you believe his testimony beyond a reasonable
doubt.”
{¶ 63} Despite appellant’s contentions, R.C. 2923.03(D) and Federal Circuit Jury
Instruction 7.07 are inapplicable to the case at hand. In State v. Sawyer (Mar. 14, 2002),
Cuyahoga App. No. 79197, 2002 WL 407935. this court held that where evidence
presented at trial does not demonstrate that the witness acted as an accomplice, “the
defendant’s claim that the court should have given an instruction in line with R.C.
2923.03(D) is unfounded.” See also State v. Summers (Oct. 23, 1995), Stark App. No.
94-CA-0243 (the instruction required by R.C. 2923.03(D) was not appropriate where the
witness was not an accomplice or coconspirator); State v. Carroll, Clermont App. Nos.
CA2007-02-030 and CA2007-03-041, 2007-Ohio-7075, ¶ 138-149 (the trial court was not
required to give 2923.03(D) instruction in murder prosecution where witness was given
immunity from prosecution and where witness was neither indicted nor a codefendant and
did not admit taking part in any crime for which appellant has been indicted); State v.
Wellman, Franklin App. No. 05AP-386, 2006-Ohio-3808, ¶ 58 (“The trial court properly
determined that the accomplice instruction was inappropriate given that there was no
evidence in the record that [the witness] and appellant were accomplices”).
{¶ 64} As in the foregoing cases, neither Firas nor Khalife qualified as an
accomplice to the aggravated murder of Rosemarie. Appellant has provided no case law
to support his position that a jury instruction similar to R.C. 2923.03(D) should be given
when the witness is not an accomplice but has received a plea agreement in consideration
for his testimony against the defendant. Similarly, this court is not bound to apply
federal jury-instruction provisions, and appellant has failed to provide any case law in
support of his position. Therefore, the trial court had no basis to apply R.C. 2923.03(D)
or Federal Circuit Jury Instruction 7.07. The trial court did not abuse its discretion in
giving the jury the standard instruction regarding witness credibility.
{¶ 65} Appellant’s first assignment of error is overruled.
Prosecutorial Misconduct
{¶ 66} In his second and third assignments of error, appellant raises claims of
prosecutorial misconduct.
II
{¶ 67} In his second assignment of error, appellant argues that he was denied a fair
trial when the state prosecutor engaged in misconduct during closing argument.
Specifically, appellant contends that the prosecutor inappropriately referred to the
testimony of attorney Larry Zukerman, which was previously excluded by the trial court
pursuant to appellant’s pretrial motion in limine. Appellant submits that the prosecutor’s
unsupported and misleading closing argument violated his constitutional right to a fair
trial under both the Ohio and United States Constitutions. We disagree.
{¶ 68} During closing arguments, over objection, the prosecutor stated the
following to the jury:
{¶ 69} “Now, he wants to tell you, or they want to tell you, well, his brother
counseled him to run, or that his lawyer, he got bad legal advice. Larry Zukerman told
him, you got to get out of town because you’re going to get charged with capital murder.
Well, the only way that Larry Zukerman would tell him about that is that the Defendant
admitted to him that these pills were laced with cyanide. There’s no lawyer who is going
to put their ticket on the line to tell him to run unless he had significant information about
the Defendant admitting —
{¶ 70} “Defense Counsel: Objection, your Honor.
{¶ 71} “Prosecutor: — that he was responsible —
{¶ 72} “Court: Overruled.
{¶ 73} “Prosecutor: — for his wife’s death.”
{¶ 74} Courts afford prosecutors wide latitude in making closing arguments. State
v. Benge (1996), 75 Ohio St.3d 136, 141, 661 N.E.2d 1019. The touchstone of this
analysis is the fairness of the trial, not the culpability of the prosecutor. State v. Noling,
98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88, ¶ 91. The test regarding
prosecutorial misconduct in closing arguments is whether the remarks were improper, and
if so, whether they prejudicially affected substantial rights of the defendant. State v.
Smith (1984), 14 Ohio St.3d 13, 14, 470 N.E.2d 883. Further, “ ‘[i]t is well settled that a
party cannot complain of [an] opponent’s argument to the jury, where it amounts only to a
reply in kind to matters argued’ by the complaining party.” State v. Hopkins, Franklin
App. No. 05AP-338, 2006-Ohio-232, ¶ 31, quoting State v. Roland (Mar. 15, 1979),
Cuyahoga App. No. 38393.
{¶ 75} Here, the prosecutor made the above statements in response to the defense
attorney’s closing argument. Specifically, the defense attorney attempted to minimize
appellant’s flight from the country by arguing that he fled only because “[h]e [was]
vulnerable to bad advice that he got from his brother, Firas, and his lawyer, Larry
Zukerman.”
{¶ 76} Appellant misreads the context of the prosecutor’s comments, which were
designed to dismantle the argument that Zukerman influenced appellant to flee the
country. The prosecutor did not vouch for the credibility of Firas or Khalife, violate
attorney-client privilege, or intentionally misstate facts. Rather, the prosecutor merely
replied to appellant’s defense counsel’s argument concerning Zukerman’s alleged “bad
advice.”
{¶ 77} Dominic DiPuccio testified that when appellant contacted him on March 17,
2005, appellant told him that he had fled the country, in part, because his attorney
believed that there was enough evidence against him to support an indictment. However,
there was no testimony that Zukerman advised appellant to leave the country. The
comments made by the prosecutor were meant to rebut any argument that appellant relied
on Zukerman’s advice to flee the country.
{¶ 78} Assuming arguendo that the sarcasm in a portion of the prosecutor’s
comments was improper, appellant has failed to establish any prejudice. The statements
did not rise to the level of prosecutorial misconduct. Therefore, we overrule appellant’s
second assignment of error.
III
{¶ 79} In his third assignment of error, appellant argues that the state committed
prosecutorial misconduct when it elicited testimony from Firas’s attorney, Robert
Glickman, concerning the truthfulness of Firas. On cross-examination, the prosecutor
questioned Glickman concerning his representation of Firas. Appellant submits that the
prosecutor, in his cross-examination of Glickman, caused Glickman to vouch for the
veracity of Firas. We disagree.
{¶ 80} The following dialogue took place:
{¶ 81} “Prosecutor: Okay. And you’re Firas Essa’s attorney, is that correct?
{¶ 82} “Glickman: Yes.
{¶ 83} “Prosecutor: Mr. Essa came in here and testified to the ladies and gentleman
of the jury and told the ladies and gentleman of the jury that his brother admitted to
poisoning his wife. Were you here for that testimony?
{¶ 84} “Glickman: I was.
{¶ 85} “Prosecutor: Okay. And as far as when [Firas] came in here to testify, did
you advise him that he needs to give complete and truthful testimony?
{¶ 86} “Glickman: I don’t have a waiver from my client to tell you what I advised
him. I will tell you I’ve never advised my client not to give anything but complete and
truthful testimony.
{¶ 87} “* * *
{¶ 88} “Prosecution: At any time would you give advice to your client to come in
and give false testimony to a jury?
{¶ 89} “Glickman: Of course not.”
{¶ 90} Generally, the opinion of a witness as to whether another witness is being
truthful is inadmissible. State v. Boston (1989), 46 Ohio St.3d 108, 128, 545 N.E.2d
1220. In our system of justice, it is the fact-finder, not the expert or lay witness, who
bears the burden of assessing the credibility or veracity of a witness. State v. Eastham
(1988), 39 Ohio St.3d 307, 312, 530 N.E.2d 409.
{¶ 91} Our review of the record indicates that Glickman never testified as to
whether he believed that Firas testified truthfully. Rather, he indicated only that he
would never direct any client to tell anything other than the truth. Accordingly, we find
that Glickman did not give any opinion regarding Firas’s veracity. Appellant’s third
assignment of error is overruled.
Evidentiary Challenges
{¶ 92} In assignments of error four, five, six, and seven, appellant raises numerous
evidentiary challenges. These assignments of error will be considered out of order for
the purposes of clarity.
{¶ 93} “The admission or exclusion of evidence rests within the sound discretion of
the trial court.” State v. Jacks (1989), 63 Ohio App.3d 200, 207, 578 N.E.2d 512.
Therefore, “[a]n appellate court which reviews the trial court’s admission or exclusion of
evidence must limit its review to whether the lower court abused its discretion.” State v.
Finnerty (1989), 45 Ohio St.3d 104, 107, 543 N.E.2d 1233. A trial court abuses its
discretion when it acts in an unreasonable, arbitrary, or unconscionable manner. A
reviewing court should not substitute its judgment for that of the trial court. See
generally State v. Jenkins (1984), 15 Ohio St.3d 164, 473 N.E.2d 264.
IV
{¶ 94} In his fifth assignment of error, appellant argues that the trial court abused
its discretion by allowing evidence of his venereal disease. We disagree.
{¶ 95} Prior to trial, the court granted appellant’s motion in limine to exclude
evidence relating to his venereal disease, with the explicit proviso that “[i]n the event that
defendant’s character, as it relates to this issue, is presented by defendant, the court
reserves the right to revise this ruling at trial.”
{¶ 96} On cross-examination of Firas, defense counsel elicited testimony that
appellant had had many sexual relationships with women before and after his marriage
and that he had been discreet about these affairs to keep them from his wife.
Subsequently, the trial court ruled, over defense counsel’s objections, that the fact that
appellant had a venereal disease and the fact that he recklessly gave the disease to other
women, including his wife, was relevant to rebut the argument that appellant was discreet
about his affairs.
{¶ 97} When a defendant opens the door to otherwise inadmissible evidence, the
state may use relevant information to rebut the inference arising from that evidence.
State v. Jackson (1991), 57 Ohio St.3d 29, 565 N.E.2d 549. The Ohio Supreme Court
has described rebuttal evidence as follows: Rebuttal evidence, the scope of which lies
within the discretion of the trial court, is that which is “given to explain, refute, or
disprove new facts introduced into evidence by the adverse party.” State v. McNeill
(1998), 83 Ohio St.3d 438, 446, 700 N.E.2d 596.
{¶ 98} Throughout the trial, defense counsel presented testimony to the jury that
Rosemarie had no knowledge of appellant’s affairs, that appellant was happy in his
marriage, and that he was a loving father. Therefore, we agree with the trial court’s
assertion that the testimony relating to appellant’s reckless sexual behavior was relevant
to rebut defense counsel’s position that appellant had been a discreet philanderer, keeping
his affairs secret from his wife. As observed by the trial court, appellant’s sexual
behavior did not appear to be discreet, and Firas’s testimony that appellant had spread his
venereal disease was relevant to rebut defense counsel’s position that Rosemarie was
unaware of appellant’s affairs. Faced with appellant’s introduction of his own character
through the testimony of his brother Firas, the trial court acted within its discretion by
allowing evidence of appellant’s reckless sexual behavior to be presented to the jury.
{¶ 99} Accordingly, appellant’s fifth assignment of error is overruled.
V
{¶ 100} In his fourth assignment of error, appellant argues that the trial court
should have granted a mistrial due to what he contends was improper character and
opinion evidence. Specifically, appellant challenges portions of testimony offered by
four of the state’s witnesses. Appellant submits that his due process rights to a fair trial
were denied when McGregor, Michelle, Marguerite, and Gina Hasrouni offered irrelevant
and prejudicial testimony. We disagree.
{¶ 101} The trial court is in the best position to determine whether a mistrial should
be declared. State v. Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190, 813 N.E.2d 637, ¶ 92.
Thus, the decision whether to grant a mistrial is within the discretion of the trial court,
and we will not disturb that decision on appeal absent an abuse of discretion. Id.Eva McGregor
{¶ 102} Initially, appellant complains of several statements made by McGregor
during her direct examination. On direct examination, McGregor testified that
Rosemarie told her that appellant gave her a venereal disease prior to their marriage.
Appellant contends that this testimony is irrelevant and highly prejudicial. We disagree.
The record reflects that Rosemarie broke up with appellant prior to their marriage based,
in part, on appellant’s having given her a venereal disease and her discovery that
appellant was having an affair. This evidence was relevant and assisted the jury in
understanding the relationship of appellant and Rosemarie.
{¶ 103} McGregor further testified that she and Rosemarie had lunch in January
2005 and that Rosemarie had told her a “disturbing story.” Appellant contends that
McGregor’s discussion of the disturbing story clearly alluded to evidence concerning
some anti-freeze left in Rosemarie’s car that was the subject of a motion in limine and
barred by the trial court from being testified about at trial. Counsel for appellant
immediately objected, and the trial court sustained the objection and prevented McGregor
from finishing her testimony concerning the “disturbing story.” The remark was
isolated, and the jury did not hear any reference to the anti-freeze story. Therefore, we
find that appellant suffered no prejudice from McGregor’s comment.
{¶ 104} Next, appellant challenges McGregor’s inference that she felt scared
during her first encounter with appellant after Rosemarie’s death and McGregor’s opinion
that there must have been something in the calcium pills taken by Rosemarie to cause
appellant to flee the United States.
{¶ 105} Pursuant to Evid.R. 701, a lay witness’s opinion testimony is limited to
those opinions or inferences that are (1) rationally based on the perception of the witness
and (2) helpful to a clear understanding of the witness’s testimony or the determination of
a fact in issue. State v. Skidmore, Mahoning App. No. 08 MA 165, 2010-Ohio-2846;
Evid.R. 701.
{¶ 106} These statements were made to explain McGregor’s state of mind in the
days following Rosemarie’s death and allowed the jury to understand why she expressed
her concerns that Rosemarie’s death may have been related to her taking the calcium pills
given to her by appellant. The statements were relevant and were not overly prejudicial.
Further, McGregor’s comment regarding appellant’s flight did not amount to prejudice
based on the trial court’s subsequent instruction on flight to the jury.
Michelle Stephens and Marguerite Montanez
{¶ 107} Defendant next complains of the testimony of both Michelle and
Marguerite that they felt hatred and disgust toward him. Appellant did not object to this
testimony and has waived all but plain error. See State v. Tichon (1995), 102 Ohio
App.3d 758, 767, 658 N.E.2d 16. To constitute plain error, the error must be obvious on
the record, palpable, and fundamental, so that it should have been apparent to the trial
court without objection. Id. Moreover, plain error does not exist unless the appellant
establishes that the outcome of the trial clearly would have been different but for the trial
court’s allegedly improper actions. State v. Waddell (1996), 75 Ohio St.3d 163, 166, 661
N.E.2d 1043. Notice of plain error is to be taken with utmost caution, under exceptional
circumstances, and only to prevent a manifest miscarriage of justice. State v. Phillips
(1995), 74 Ohio St.3d 72, 83, 656 N.E.2d 643.
{¶ 108} Based on the other evidence adduced at trial, we hold that the brief, general
statements by Michelle and Marguerite that they despised and hated appellant were not
outcome-determinative, and therefore the admission of the statements was not plain error.
Gina Hasrouni
{¶ 109} Finally, appellant complains that a mistrial was proper after Gina Hasrouni
testified that due to his behavior at her funeral, she believed that appellant had killed his
wife. This response was immediately struck by the trial court, and the court gave the jury
instructions to disregard the comment. A jury is presumed to follow the trial court’s
instructions. Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190, 813 N.E.2d 637. Here, the
trial court was in the best position to evaluate whether the testimony of Hasrouni deprived
appellant of a fair trial, and its decision to deny appellant’s request for a mistrial was not
an abuse of discretion.
{¶ 110} Accordingly, appellant’s fourth assignment of error is overruled.
VI
{¶ 111} In his sixth assignment of error, appellant argues that the trial court
improperly allowed the introduction of bad-acts testimony in violation of Evid.R. 404(B).
We disagree.
{¶ 112} Under Evid.R. 404(B), evidence of other crimes, wrongs, or acts is not
admissible to prove a defendant’s character as to criminal propensity. It may, however,
be admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.
{¶ 113} Further, R.C. 2945.59 provides, “In any criminal case in which the
defendant’s motive or intent, the absence of mistake or accident on his part, or the
defendant’s scheme, plan, or system in doing an act is material, any acts of the defendant
which tend to show his motive or intent, the absence of mistake or accident on his part, or
the defendant’s scheme, plan, or system in doing the act in question may be proved,
whether they are contemporaneous with or prior or subsequent thereto, notwithstanding
that such proof may show or tend to show the commission of another crime by the
defendant.”
{¶ 114} Evidence of other acts by a defendant is admissible only when it tends to
show one of the matters enumerated in the statute and rule and only when the evidence is
relevant to prove that the defendant is guilty of the offense in question. State v. Burson
(1974), 38 Ohio St.2d 157, 311 N.E.2d 526.
{¶ 115} Appellant points to four instances of testimony where “other acts” were
improperly admitted by the trial court. He specifically challenges Khalife’s testimony
that appellant indulged in recreational drugs and prostitutes in Beirut; Cindy Page’s
testimony that appellant spoke derogatorily to his wife at a Christmas party; Firas’s
testimony that appellant gave his wife and other women a venereal disease; and
McGregor’s mention of a “disturbing story.”
{¶ 116} As stated above, McGregor’s mention of a “disturbing story” was properly
objected to and stricken from the record. The objection was sustained, and McGregor
was prevented from discussing any facts surrounding the disturbing story for the jury.
Because McGregor never disclosed the actual acts surrounding the disturbing story, we
cannot find a violation of Evid.R. 404(B).
{¶ 117} Additionally, we find that the admissibility of the evidence concerning
appellant’s giving other women a venereal disease is not barred by Evid.R. 404(B). The
testimony was not admitted to show that appellant acted in conformity with prior bad acts.
Rather, it was properly admitted as a rebuttal to appellant’s elicitation of testimony that
he had acted discreetly in carrying on affairs and was generally a good husband.
Therefore, the trial court did not abuse its discretion in admitting the testimony.
{¶ 118} Similarly, appellant’s argument regarding the testimony of Cindy Page
lacks merit because her testimony was used to rebut evidence presented by defense
counsel that appellant and Rosemarie had a good marriage. Rebuttal evidence, the scope
of which lies in the discretion of the trial court, is that which is given to “explain, refute,
or disprove new facts introduced into evidence by the adverse party.” McNeill, 83 Ohio
St.3d at 446, 700 N.E.2d 596.
{¶ 119} During his case, appellant called Rosemarie’s close friend, Katie Touhey,
to testify that Rosemarie seemed happy in her marriage. Appellant used Touhey’s
testimony to present to the jury an impression of marital harmony. To rebut this
evidence, the trial court allowed Cindy Page to testify to having been at an Akron General
Hospital Christmas party with appellant, Rosemarie, and Page’s Saudi Arabian husband.
Page testified that Rosemarie witnessed the two men speaking Arabic together and asked
Page’s husband where he was from. In response, appellant told Rosemarie that “no one
was talking to her.” Page testified, “[appellant] told her to shut up and go sit down.”
Rosemarie, humiliated, put up no resistance, and just went and sat down.
{¶ 120} We find that Page’s testimony did not fall within the Evid.R. 404(B)
category of evidence. Rather, the testimony was proper rebuttal evidence used to refute
and disprove the new facts introduced by defense counsel through the testimony of
Touhey. Therefore, the trial court did not abuse its discretion by admitting the testimony
of Page.
{¶ 121} Finally, appellant submits that Khalife’s testimony that appellant indulged
in recreational drug use and prostitutes during his time in Beirut was irrelevant and in
violation of Evid.R. 404(B). In the absence of an objection, we limit our review of the
prosecutor’s comments to that standard established for plain error. In light of the other
evidence adduced at trial, we hold that the brief, general statements by Khalife that
appellant had engaged in irrelevant bad acts was not outcome-determinative, and
therefore, the admission of the statements was not plain error. See State v. Davis (1996),
76 Ohio St.3d 107, 118, 666 N.E.2d 1099.
{¶ 122} Accordingly, appellant’s sixth assignment of error is overruled.
VII
{¶ 123} In his seventh assignment of error, appellant argues that the trial court
erred when it allowed McGregor to testify about the conversation she had with Rosemarie
just moments before Rosemarie’s death.
{¶ 124} A trial court possesses broad discretion with respect to the admission of
evidence, including the discretion to determine whether evidence constitutes hearsay and
whether it is admissible hearsay. State v. Graves, Lorain App. No. 08CA009397,
2009-Ohio-1133, ¶ 4. Whether or not the declarant is available as a witness, Evid.R.
803(1) permits the admission of statements “describing or explaining an event or
condition made while the declarant was perceiving the event or condition, or immediately
thereafter unless circumstances indicate lack of trustworthiness.”
{¶ 125} Therefore, of “central [concern] to the admission of statements of present
sense impression is the temporal proximity of statements to the event at issue. [This is so
because] ‘the principle underlying this hearsay exception is the assumption that
statements or perceptions describing the event and uttered [closely in time] to the event,
bear a high degree of trustworthiness.’ ” Graves, 2009-Ohio-1133, at ¶ 4, quoting Cox v.
Olivers Mach. Co. (1987), 41 Ohio App.3d 28, 37, 534 N.E.2d 855.
{¶ 126} The key to the statement’s trustworthiness is the spontaneity of the
statement; it must be either contemporaneous with the event or be made immediately
thereafter. A minimal lapse of time between the event and statement indicates an
insufficient period to reflect on the event perceived; the declarant’s reflection would
detract from the statement’s trustworthiness. State v. Ellington, Cuyahoga App. No.
84014, 2004-Ohio-5036, ¶ 10. “When the statement is the ‘product of reflective thinking
rather than spontaneous perception,’ Evid.R. 803(1) does not apply.” Graves at ¶ 4,
citing State v. Simmons, Summit App. No. 21150, 2003-Ohio-721, ¶ 35-36.
{¶ 127} The record reflects that Rosemarie indicated to McGregor that she was
feeling nauseous and believed it was being caused by a calcium pill that appellant had
told her to take earlier in the day. Rosemarie personally observed appellant give her the
calcium pill, then personally experienced her own nausea setting in, all of which she
recounted to McGregor as it was happening.
{¶ 128} Based upon the circumstances presented, this court cannot find that the
trial court abused its discretion in admitting this testimony. McGregor’s testimony
related to the feeling of sickness that Rosemarie was suffering at the time she made the
statement. Further, the proximity in time between appellant’s giving Rosemarie the
calcium pill and Rosemarie’s statement indicates its trustworthiness. State v. Travis, 165
Ohio App.3d 626, 2006-Ohio-787, 847 N.E.2d 1237. Therefore, McGregor’s testimony
was admissible pursuant to the present-sense-impression exception to the hearsay rules of
evidence.
{¶ 129} Accordingly, appellant’s seventh assignment of error is overruled.
Expert Testimony
VIII
{¶ 130} In his eighth assignment of error, appellant argues that the trial court erred
when it allowed Gregg McCrary, retired Special Agent for the Federal Bureau of
Investigation (“FBI”), to testify as an expert when his testimony invaded the sole province
of the jury deciding this case. Appellant submits that although McCrary was never
directly asked to give his opinion about his special knowledge as a crime-scene analyst,
he indirectly gave his opinion that appellant had a narcissistic personality and had staged
his wife’s death. We disagree.
{¶ 131} McCrary worked as a special agent for the FBI for approximately 25 years.
During that time, he took several graduate courses in criminal justice, and he received a
master’s degree in psychological services. He served his last ten years with the FBI in
the behavioral-science unit, investigating cases and conducting research on violent
criminal behavior to improve the operational effectiveness of the law-enforcement
community. According to McCrary, the behavioral-science unit was developed in order
to understand how people commit crimes, what motivates them to commit crimes, and
how they get away with committing crimes.
{¶ 132} The Ohio Supreme Court has clearly held that police officers may qualify
as expert witnesses where they possess specialized knowledge that will assist the
fact-finder. State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038.
In Drummond, the court held that a police officer with specialized knowledge of gangs
and gang symbols could properly testify as an expert. As in Drummond, McCrary’s
specialized knowledge regarding the staging of crime scenes was helpful to the
fact-finder and relevant to the issues litigated throughout appellant’s trial.
{¶ 133} At trial, McCrary was permitted to testify about his experience and
specialization in the fields of crime-scene analysis, crime classification, and victimology.
Specifically, McCrary discussed his knowledge and expertise with crime-scene “staging.”
McCrary defined staging as the “purposeful alteration of the crime or the crime scene to
suggest some other motive, false motive.” According to McCrary, offenders will stage a
scene of a crime so that they will not immediately become the primary suspect.
{¶ 134} Appellant relies on this court’s opinion in State v. Garcia, Cuyahoga App.
No. 79917, 2002-Ohio-4179. In Garcia, the prosecution attempted to use McCrary as an
expert witness; however, this court held that it was improper for McCrary to testify that in
his expert opinion, the fire that had killed the defendant’s children had had all the
elements of being an arson for profit. In reaching that conclusion, this court held that
such expert opinion testimony improperly invaded the jury’s province. Id. However,
the case at bar is distinguishable from Garcia. Here, McCrary did not offer any
conclusions or opinions concerning appellant’s possible motives in this case, and
McCrary did not offer any opinions as to whether he believed appellant had staged
Rosemarie’s death. Rather, McCrary merely explained the concept of “staging” and
identified situations where staging may occur and why a defendant would attempt to stage
a crime scene. We find that this information did not invade the jury’s province. See
State v. Stevens (Tenn.2002) 78 S.W.3d 817 (the Tennessee Supreme Court held that
McCrary could testify about the staging of the crime scene, but was prohibited from
testifying about the defendant’s probable motives).
{¶ 135} Appellant also argues that it was improper for McCrary to define
narcissistic personality disorder under the Diagnostic and Statistical Manual of Mental
Disorders (“DSM-IV”). The DSM-IV is a book of all the major mental disorders or
mental illnesses that psychologists and psychiatrists have defined over the years. Evid.R.
803(18) provides that the following is “not excluded by the hearsay rule”: “To the extent
called to the attention of an expert witness upon cross-examination or relied upon by the
expert witness in direct examination, statements contained in published treatises,
periodicals, or pamphlets on a subject of history, medicine, or other science or art,
established as a reliable authority by the testimony or admission of the witness or by other
expert testimony or by judicial notice. If admitted, the statements may be read into
evidence but may not be received as exhibits.” McCrary testified that he relied on the
DSM-IV in his training and experience, and the definition of Narcissistic Personality
Disorder was relevant to McCrary’s testimony concerning the theory of “staging” and
crime classifications. Pursuant to Evid.R. 803(18), we find that the trial court acted
within its discretion when it allowed McCrary to define Narcissistic Personality Disorder
under the DSM-IV.
{¶ 136} Appellant’s eighth assignment of error is overruled.
Manifest Weight
IX
{¶ 137} In his ninth assignment of error, appellant argues that his conviction for
aggravated murder was against the manifest weight of the evidence. We disagree.
{¶ 138} The court in State v. Martin (1983), 20 Ohio App.3d 172, 485 N.E.2d 717,
has set forth the proper test to be used when addressing the issue of manifest weight of
the evidence. Martin stated: “The court, reviewing the entire record, weighs the
evidence and all reasonable inferences, considers the credibility of witnesses, and
determines whether in resolving conflicts in the evidence, the jury clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and a
new trial ordered.” Id. at 175. Moreover, it is important to note that the weight of the
evidence and the credibility of the witnesses are issues primarily for the trier of fact.
State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph one of the
syllabus. The power to reverse a judgment of conviction as against the manifest weight
must be exercised with caution and in only the rare case in which the evidence weighs
heavily against the conviction. Martin.
{¶ 139} In determining whether a judgment of conviction is against the manifest
weight of the evidence, in State v. Wilson (June 9, 1994), Cuyahoga App. Nos. 64442 and
64443, we adopted the guidelines set forth in State v. Mattison (1985), 23 Ohio App.3d
10, 490 N.E.2d 926, syllabus. These factors, which this court noted are in no way
exhaustive, include (1) knowledge that even a reviewing court is not required to accept
the incredible as true; (2) whether evidence is uncontradicted; (3) whether a witness was
impeached; (4) attention to what was not proved; (5)the certainty of the evidence; (6) the
reliability of the evidence; (7) the extent to which a witness may have a personal interest
to advance or defend [his or her]testimony; and (8) the extent to which the evidence is
vague, uncertain, conflicting or fragmentary.
{¶ 140} A reviewing court will not reverse a verdict where the trier of fact could
reasonably conclude from substantial evidence that the state has proved the offense
beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169, 383 N.E.2d 132.
{¶ 141} R.C. 2903.01(A) states: “No person shall purposely, and with prior
calculation and design, cause the death of another.” Pursuant to R.C. 2901.22(A), “[a]
person acts purposely when it is his specific intention to cause a certain result.” Intent
may be determined from the surrounding facts and circumstances. State v. Johnson
(1978), 56 Ohio St.2d 35, 38, 381 N.E.2d 637. An intent to kill may be presumed when
the natural and probable consequence of an act is to produce death, and the jury may
conclude from the surrounding circumstances that there was an intention to kill. State v.
Robinson (1954), 161 Ohio St. 213, 118 N.E.2d 517. It is presumed that a person intends
the natural, reasonable, and probable consequences of his voluntary acts. State v.
Nabozny (1978), 54 Ohio St.2d 195, 375 N.E.2d 784.
{¶ 142} Based on the forthcoming, we find that appellant’s conviction was not
against the manifest weight of the evidence.
{¶ 143} The record indicates that appellant was a prominent doctor who
demonstrated his knowledge of cyanide poisoning by giving Grand Rounds courses at the
Akron General Hospital addressing the subject. He also had access to cyanide through
his well-documented connections to the jewelry industry.
{¶ 144} The testimony of Firas established that just months before Rosemarie’s
death, appellant embarked on an affair with his mistress, Michelle. While dating
Michelle, appellant sent her a Pajamagram proclaiming that “[n]ext Valentine’s Day will
be all ours.” The evidence presented at trial indicates that in the days leading to
Rosemarie’s death, there were signs that she had confronted appellant about his affair.
Analysis conducted on the Essa family computer found that two days before Rosemarie’s
death, someone in the home typed an Internet search for “Michelle Madeline.”
Testimony at trial proved that appellant was at work when this search was conducted.
The night before her death, Rosemarie made a burst of telephone calls between 11:23 and
11:30 p.m. to appellant’s cell phone, pager, and messaging service, followed by two
longer telephone conversations around 2:00 a.m.
{¶ 145} Further, the record indicates that prior to leaving her home to meet her
sister at the movie theater, Rosemarie was handed a calcium pill by the appellant, who
insisted that she take it. While driving to the movie theater, Rosemarie called her
long-time friend McGregor and confided to her that she thought the calcium pills were the
cause of her current nausea.
{¶ 146} On March 17, 2005, four weeks after Rosemarie’s death, appellant agreed
to meet with Detective McKee. At trial, McKee stated that the interview was benign,
routine, and nonaccusatory. In the course of that interview, McKee confiscated the
calcium pills taken by Rosemarie on the day of her death. Within hours, appellant fled
the country and began a new life in Beirut, where he used forgery and disguises to
maneuver throughout the country.
{¶ 147} Just days after appellant’s flight from the United States, the Lake County
Crime Lab inspected the calcium capsules that were retrieved from appellant’s home and
determined that nine of the 56 capsules tested contained cyanide. Appellant indicated
that these were the pills that Rosemarie took on the day of her death, and the testimony of
McGregor indicated that it was appellant who gave Rosemarie the calcium pill that
morning. Thereafter, an additional toxicology screen performed by the Cuyahoga
County Coroner’s Office revealed 9.1 milligrams of cyanide per liter of Rosemarie’s
blood. As a result, the coroner’s officer concluded that Rosemarie died of cyanide
poisoning.
{¶ 148} Finally, Firas, Khalife, and Awad testified that appellant had personally
admitted to each of them, on separate occasions, that he killed Rosemarie by putting
cyanide in her calcium supplements.
{¶ 149} We are unable to conclude that this is the exceptional case in which the
evidence weighs heavily against the conviction. The state presented competent, credible
evidence to support the jury’s determination that appellant purposely, and with prior
calculation and design, caused the death of Rosemarie. The jury was in the best position
to weigh the credibility of the witnesses brought before it, and we find that the jury did
not clearly lose its way when it found appellant guilty of aggravated murder. Therefore,
appellant’s conviction for aggravated murder was not against the manifest weight of the
evidence.
{¶ 150} Appellant’s ninth assignment of error is without merit and is overruled.
R.C. 2967.191
X
{¶ 151} In his tenth assignment of error, appellant argues that the trial court erred
when it failed to grant him credit for time served between the date of his arrest in Cyprus
on October 7, 2006, and his arrival in the Cuyahoga County Jail on October 9, 2009.
{¶ 152} In State v. Jordan (Apr. 10, 2000), Cuyahoga App. No. 76488, this court
held, “R.C. 2967.191 provides that a prison term shall be reduced by the number of days
confined which arose out of the offense for which the prisoner was convicted and
sentenced. Appellant is not entitled to credit for time served in another jurisdiction for
another offense.” Id. at 1, citing State ex. rel. Gillen v. Ohio Adult Parole Auth. (1995),
72 Ohio St.3d 381, 650 N.E.2d 454; State v. McWilliams (1998), 126 Ohio App.3d 398,
710 N.E.2d 729.
{¶ 153} In the case at bar, appellant was not arrested or held in Cyprus solely on the
underlying aggravated-murder charge. Initially, the Cypriot National Police arrested
appellant for violating Cypriot laws against using a false passport and impersonation.
Appellant was then held pursuant to a federal “Unlawful Flight to Avoid Prosecution”
warrant (“UFAP warrant”). The federal UFAP warrant remained pending during the
entire period that appellant was imprisoned in Cyprus. Appellant has failed to
demonstrate that he was held in Cyprus solely on the underlying charge. Therefore, the
trial court did not err in denying his request for credit for time served for the time he spent
fighting extradition charges in Cyprus.
{¶ 154} Accordingly, appellant’s tenth assignment of error is overruled.
Cumulative Errors
XI
{¶ 155} In his 11th assignment of error, appellant argues that the cumulative errors
that occurred in his case deprived him of a fair trial. We disagree.
{¶ 156} “ ‘It is true that separately harmless errors may violate a defendant’s right
to a fair trial when the errors are considered together. In order to find “cumulative error”
present, we first must find that multiple errors were committed at trial. We then must
find a reasonable probability that the outcome of the trial would have been different but
for the combination of the separately harmless errors.’ ” State v. Clark, Cuyahoga App.
No. 89371, 2008-Ohio-1404, ¶ 62, quoting State v. Djuric, Cuyahoga App. No. 87745,
2007-Ohio-413.
{¶ 157} Specifically, appellant contends that the multiple errors raised in his
previously discussed assignments of error form the basis of his cumulative-errors
argument. Based on our discussion in the previous assigned errors, we find that
appellant was not denied his constitutional right to a fair trial. Consequently, having
found no errors regarding appellant’s pivotal complaints in this case, we find that the
doctrine of cumulative errors is inapplicable.
{¶ 158} Accordingly, we overrule appellant’s 11th assignment of error.
Judgment affirmed.
JONES and GALLAGHER, JJ., concur.
_______________
APPENDIX
Appellant’s Assignments of Error:
I. “The appellant was denied his rights to equal protection and due process
under both the Ohio and United States Constitutions when the trial court failed to give a
cautionary jury instruction regarding the testimony of Jamal Khalife and Firas Essa.”
II. “The appellant was denied a fair trial in violation of the Fourteenth
Amendment of the United States Constitution and Article I, Section 16 of the Ohio
Constitution when the prosecutor engaged in misconduct during closing argument.”
III. “The appellant was denied his constitutional right to a fair trial in violation
of the Fourteenth Amendment of the United States Constitution and Article I, Section 16
of the Ohio Constitution when the prosecution elicited testimony from Firas Essa’s
attorney that Firas Essa testified truthfully.”
IV. “The appellant’s due process rights were violated when the trial court failed
to declare a mistrial after the prosecution elicited inadmissible character and opinion
testimony regarding the appellant.”
V. “The trial court abused its discretion by allowing the State of Ohio [to]
elicit testimony that the appellant had a venereal disease.”
VI. “The appellant was denied due process of law and a fair trial when the trial
court permitted evidence of other alleged bad acts pursuant to Evid.R. 404(B).”
VII. “The appellant’s confrontation rights under the state and federal
constitution were violated by the admission of hearsay statements of Rosemarie Essa
through Eva McGregor.”
VIII. “The trial court erred when it allowed a crime scene analyst to testify.”
IX. “The conviction for aggravated murder was against the manifest weight of
the evidence.”
X. “The trial court miscalculated the appellant’s jail time credit.”
XI. “The cumulative errors that occurred in the appellant’s case deprived him of
a fair trial.”