State v. Thompson (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State v. Thompson, Slip Opinion No. 2014-Ohio-4751.]
NOTICE
This slip opinion is subject to formal revision before it is published in
an advance sheet of the Ohio Official Reports. Readers are requested
to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
65 South Front Street, Columbus, Ohio 43215, of any typographical or
other formal errors in the opinion, in order that corrections may be
made before the opinion is published.
SLIP OPINION NO. 2014-OHIO-4751THE STATE OF OHIO, APPELLEE, v. THOMPSON, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Thompson, Slip Opinion No. 2014-Ohio-4751.]
Criminal law—Aggravated murder—Killing law-enforcement officer to escape
detection—Death penalty affirmed.
(No. 2010-1373—Submitted April 8, 2014—Decided October 29, 2014.)
APPEAL from the Court of Common Pleas of Summit County,
No. CR 2008-07-2390.
_________________
FRENCH, J.
{¶ 1} This is an appeal as of right by appellant, Ashford L. Thompson,
who has been sentenced to death for the aggravated murder of Twinsburg Police
Officer Joshua Miktarian. For the reasons below, we affirm Thompson’s
convictions and sentence.
I. BACKGROUND
{¶ 2} Following the murder of Officer Miktarian, the state charged
Thompson with two counts of aggravated murder under R.C. 2903.01(B) and (E).
Each count carried three death specifications: purposely killing a law-enforcement
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officer, R.C. 2929.04(A)(6), killing to escape detection, R.C. 2929.04(A)(3), and
killing while under detention, R.C. 2929.04(A)(4). The state also charged
Thompson with two counts of escape, two counts of resisting arrest, three counts
of tampering with evidence, and one count of carrying a concealed weapon.
Every count of the indictment also carried at least one firearm specification.
{¶ 3} Thompson’s jury trial commenced in 2010.
A. The State’s Case in Chief
1. Rav’s Bar
{¶ 4} A little after midnight on July 13, 2008, Thompson picked up his
girlfriend, Danielle Roberson, and they drove to Rav’s Creekside Tap and Grill
(“Rav’s Bar”). The bartender, John Jira, recognized Thompson as a regular
customer who typically ordered one beer and never caused trouble. That night,
Jira served Thompson a single Budweiser draft at 12:30 or 1:00 a.m.
{¶ 5} Rav’s Bar patron Steven Bartz testified that he saw a woman and a
man, whom he later identified as Thompson, sitting at the bar that night. He said
he had heard Thompson making angry comments. According to Bartz, Thompson
was drinking a beer, was “slamming his glass on the bar,” and “was pretty drunk.”
Bartz heard Thompson say to his companion, “There’s demons in me” and “I will
kill any one f* * *er that threatens me.” Bartz also testified that Thompson said,
“Nobody understands the s* * * I’ve done and am capable of doing. I can’t even
talk about it.”
2. Traffic Stop
{¶ 6} Around 1:50 a.m. on July 13, Miktarian was en route to the
Twinsburg police station. He was wearing a police uniform and driving a marked
police cruiser. His police dog, Bagio, was with him.
{¶ 7} Miktarian began following Thompson’s car near the intersection of
State Route 91 and Glenwood Drive. Another driver, Natalie Spagnolo, testified
that she saw a police cruiser turn on its lights and follow a car onto Glenwood
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Drive that night. The car was playing music so loudly that she could hear it over
her own loud music even though her windows were up.
{¶ 8} At about 1:55 a.m., Miktarian called dispatch to report a traffic stop
at a residence on “Glenwood near 91.” Thompson had pulled into his driveway
on Glenwood, and Miktarian pulled into the driveway behind him. Miktarian
provided the license plate number—“ITNL.” Approximately two minutes later,
he requested backup.
{¶ 9} The dispatcher, Christine Franco, ran the license-plate number on
the Law Enforcement Data System at 1:55 a.m. Her search revealed that the
owner of the vehicle had a license to carry a concealed firearm. Moments after
Miktarian requested backup, Franco reported, “The only thing I know is he has
a—he has a right to carry.” Miktarian did not respond.
{¶ 10} Officer Patrick Quinn heard Miktarian’s backup request over the
radio and “figur[ed] something was possibly wrong.” He responded, asking
Miktarian “what he had.” Miktarian did not answer, so Quinn “ran to [his] cruiser
and then left the station with [his] lights and sirens activated.”
{¶ 11} Moments later, the dispatcher received a phone call from
Thompson’s next-door neighbor, Mary Spisak. Around 2:00 a.m., Spisak woke to
the sound of yelling outside her open window. She heard five popping sounds
and called to report “shooting and arguing in the next-door neighbor’s yard.” The
dispatcher relayed this information to Miktarian, but he still did not respond.
{¶ 12} Three other witnesses testified that they had heard popping sounds
near 2454 Glenwood Drive around the same time. Two of the witnesses, Douglas
Szymanski and Joseph Werling, were stopped in a car at the intersection of State
Route 91 and Glenwood Drive when they saw the lights of a police cruiser 200 to
300 feet away and heard four gunshots. They drove onto Glenwood and saw a
police cruiser parked in a driveway with its overhead lights on.
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{¶ 13} Officers quickly arrived at the scene. Officer Quinn arrived first
and saw Miktarian’s cruiser with its lights on, but no other vehicles. Another
officer arrived and saw Miktarian on the ground next to his cruiser. Miktarian
had no vital signs when emergency medical services arrived.
{¶ 14} Thompson’s driver’s license and insurance card were in
Miktarian’s front shirt pocket.
3. Thompson’s Arrest
{¶ 15} Twinsburg police enlisted the assistance of other local law
enforcement to locate Thompson. Around 2:00 a.m., the Bedford Heights Police
Department received notice that Thompson had a prior address in their
jurisdiction, on Cambridge Drive. Three officers went to investigate.
{¶ 16} Around 2:20 a.m., Sergeant David Sandoval, Officer Anthony
Vanek, and Officer Kimberly Callieham arrived at the Cambridge Drive address.
They saw three people—two women and one man—standing in the driveway.
Vanek also saw a vehicle with the license plate “ITNL” parked inside an open
garage at the top of the driveway.
{¶ 17} Vanek began to question one of the women, Bridget Robinson, and
she said that she was Thompson’s sister. While Vanek was inquiring about
Thompson’s whereabouts, he heard a loud disturbance inside the house. He
realized that the other woman, later identified as Danielle Roberson, had left the
driveway.
{¶ 18} Vanek approached the house and opened the screen door; the main
door was already open. He saw a man—later identified as Thompson—who had a
pair of handcuffs hanging off his right wrist. Vanek confronted Thompson in the
kitchen, and a struggle ensued. One officer seized a Kel-Tec 9 mm handgun from
the stovetop, and another arrested Thompson and took him into custody.
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4. Physical Evidence
{¶ 19} At booking, Sergeant Greg Feketik photographed Thompson, his
clothes and shoes, a small cut on his wrist, and the handcuffs he was wearing,
which were marked with Miktarian’s badge number. Later forensic testing
confirmed the presence of blood with a DNA profile consistent with Miktarian’s
DNA profile on Thompson’s left shoe, watch band, and shirt and on the barrel of
the recovered gun.
{¶ 20} Dr. Darin Trelka, then a deputy coroner for Cuyahoga County,
performed an autopsy on July 14, 2008. Trelka classified Miktarian’s death as a
homicide and determined that he died from four gunshot wounds to the head.
{¶ 21} Officers from the crime-scene unit photographed and documented
the scene at Glenwood Drive and collected evidence. They recovered three spent
bullets, and the medical examiner recovered a fourth bullet from Miktarian’s skull
during the autopsy.
{¶ 22} On the driveway, the crime-scene-unit officers found a pair of
Miktarian’s handcuffs and his Taser, which had been activated but not fired.
Miktarian’s handgun was still in a triple-retention holster on his duty belt.
{¶ 23} Officers also recovered a broken liquor bottle next to the sidewalk
in front of Thompson’s house. Two officers observed, but did not collect, a small,
yellowish-grey, chewed-up food substance on the driveway. They later believed
that the substance was garlic, because a search of Thompson’s car uncovered a
baggie containing garlic cloves. Detective Jason Kline explained that sometimes
persons who have been drinking chew garlic when talking to police to cover the
odor of alcohol on their breath.
{¶ 24} Inside Thompson’s home, officers found a receipt documenting his
purchase of a Kel-Tec 9 mm handgun. The serial number of the gun listed on the
receipt matched the number on the gun found at the house on Cambridge Drive,
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and subsequent ballistics testing confirmed that the spent bullets and shell casings
recovered from the crime scene had been fired from that gun.
B. The Defense’s Case
{¶ 25} At trial, the defense presented one witness, Danielle Roberson.
Roberson testified that at the time of the shooting, she had been dating Thompson
for approximately two years.
{¶ 26} According to Roberson, on July 13, Thompson and his friend
picked her up at her mother’s house a little after midnight. After dropping off
Thompson’s friend, Thompson and Roberson went to Rav’s Bar. Roberson
testified that Thompson drank one-half of a beer. She did not recall Thompson’s
being angry or consuming any additional alcohol that night.
{¶ 27} The couple left the bar and headed toward Thompson’s house. At
the intersection of State Route 91 and Glenwood Drive, Roberson saw a police
cruiser to the right. When the light turned green, Thompson turned left and drove
the short distance to his driveway. Roberson said she saw the officer make a U-
turn as Thompson’s car turned the corner, but the cruiser’s overhead lights were
not on. According to Roberson, the officer pulled into the driveway behind
Thompson’s car and then turned his lights on.
{¶ 28} Roberson testified that she and Thompson started to get out of the
car but then saw the officer approaching, so they stayed in the car. She said that
the officer asked Thompson, “[W]hy are you running through my city with all that
boom, boom, boom. I ought to rip all this s* * * out of your car.” The officer
then indicated that he had been following Thompson for two and one-half miles
and asked why he had not stopped. The officer took Thompson’s driver’s license
and insurance card and asked whether he had had anything to drink.
{¶ 29} It is not clear from Roberson’s testimony when Thompson got out
of the car, but he did at some point. According to Roberson, the officer “slapped”
a handcuff on Thompson’s wrist and Thompson somehow ended up on the
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ground. Roberson testified that the officer threatened to let the dog out if
Thompson tried anything and reached for his belt. Then he “slammed”
Thompson onto the hood of the cruiser, over the side fender. As Roberson turned
away, she saw the officer reach to his right side. The officer was right behind
Thompson. Roberson saw Thompson turn around and shoot the officer. The
officer fell. Roberson could no longer see what was happening, because the car
was blocking her view, but she heard two more shots. Later in her testimony, she
said that Thompson was standing over the officer when he fired those two shots.
{¶ 30} According to Roberson, Thompson told her to get back in the car,
and they drove to his sister’s home. Officers later arrived at Thompson’s sister’s
house and tackled Thompson in the kitchen. During the struggle, Thompson tore
off the refrigerator door. Ultimately, officers handcuffed Thompson.
C. The State’s Rebuttal
{¶ 31} The state recalled Detective Kline to the stand in rebuttal. Kline
testified that he had listened to recordings of Thompson’s jailhouse phone
conversations with Roberson. The prosecution played the recording of a May 3,
2009 conversation between Thompson and Roberson. On the recording,
Thompson explained that he had been “pissed” the night of Miktarian’s death
because Roberson had been “half dressed” when he and a friend arrived to pick
her up. Thompson had just returned from a trip and was tired, and Roberson had
been calling all day asking to see him.
D. Verdict and Sentencing
{¶ 32} After a five-day trial, a jury convicted Thompson of both
aggravated-murder counts and all associated specifications. Thompson was also
convicted of escape, resisting arrest, tampering with evidence, and carrying a
concealed weapon. The trial court dismissed one of the escape counts pursuant to
Crim.R. 29.
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{¶ 33} The trial court merged the two aggravated-murder convictions and
two of the three death specifications for the mitigation hearing and sentencing.
After the mitigation hearing, the jury unanimously recommended a sentence of
death. The court agreed with the jury’s recommendation and sentenced
Thompson to death for one count of aggravated murder, R.C. 2903.01(E), with
two death specifications—purposely killing a police officer, R.C. 2929.04(A)(6),
and killing to escape detection, R.C. 2929.04(A)(3). The trial court also merged
the three counts of tampering with evidence.
{¶ 34} The court imposed the following sentences for the remaining
counts, with all sentences to be served concurrently with each other, except the
terms for the firearm specifications: seven years for the merged firearm
specifications, to be served consecutively to the other sentences, 12 months for
escape, 18 months for felony resisting arrest, 90 days for misdemeanor resisting
arrest, five years for tampering with evidence, and 12 months for carrying a
concealed weapon.
{¶ 35} Thompson now appeals his conviction for aggravated murder and
his death sentence, raising 18 propositions of law. We address some of
Thompson’s propositions of law out of order.
II. ANALYSIS
A. Final, Appealable Order
{¶ 36} In proposition of law No. I, Thompson challenges this court’s
jurisdiction to hear his appeal because, he claims, the trial court failed to issue a
final, appealable order in compliance with Crim.R. 32(C). We conclude that the
trial court complied with Crim.R. 32(C) and that this court has jurisdiction to hear
Thompson’s appeal.
1. Crim.R. 32(C)
{¶ 37} This court lacks jurisdiction over orders that are not final and
appealable. See Ohio Constitution, Article IV, Section 3(B)(2); R.C. 2953.02.
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{¶ 38} Crim.R. 32(C) prescribes the requirements for a final, appealable
order in a criminal case. The rule in effect at the time of Thompson’s conviction
stated:
A judgment of conviction shall set forth the plea, the
verdict, or findings, upon which each conviction is based, and the
sentence. Multiple judgments of conviction may be addressed in
one judgment entry. If the defendant is found not guilty or for any
other reason is entitled to be discharged, the court shall render
judgment accordingly. The judge shall sign the judgment and the
clerk shall enter it on the journal. A judgment is effective only
when entered on the journal by the clerk.
Former Crim.R. 32(C) (2009), 122 Ohio St.3d c. Accordingly, we held that “a
judgment of conviction is a final order subject to appeal under R.C. 2505.02 when
the judgment entry sets forth (1) the fact of the conviction, (2) the sentence, (3) the
judge’s signature, and (4) the time stamp indicating the entry upon the journal by
the clerk.” State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142,
at ¶ 14.
{¶ 39} As a general matter, “[o]nly one document can constitute a final
appealable order,” meaning that a single entry must satisfy the requirements of
Crim.R. 32(C). State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d
163, at ¶ 17. There is, however, an exception for capital cases, in which R.C.
2929.03(F) requires the court or panel to file a sentencing opinion. State v.
Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, syllabus and ¶ 17-
18. In those cases, “a final, appealable order consists of both the sentencing
opinion filed pursuant to R.C. 2929.03(F) and the judgment of conviction filed
pursuant to Crim.R. 32(C).” (Emphasis added.) Id. at syllabus.
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2. The Trial Court’s Orders
{¶ 40} On June 23, 2010, the trial court issued a sentencing opinion, as
R.C. 2929.03(F) requires. In the opinion, the court sentenced Thompson to death
on the capital count and also imposed sentences for the noncapital counts. That
opinion was signed by the judge and journalized. The trial court also filed a
separate entry on June 24, 2010, recording the jury’s verdict finding Thompson
guilty of 26 counts and specifications. That entry was likewise signed by the
judge and journalized. Together, those two documents comply with the
requirements of Crim.R. 32(C) and thus constitute a final, appealable order. See
Ketterer at ¶ 17.
{¶ 41} Thompson does not dispute that these documents, if valid, satisfy
the four requirements for a final, appealable order. Instead, he argues that we
cannot even look to these documents to evaluate their compliance with Crim.R.
32(C) because (1) the entry filed on June 24 was replaced by a subsequent nunc
pro tunc entry and (2) the sentencing opinion contained an error. Both arguments
fail.
{¶ 42} First, Thompson argues that when a nunc pro tunc entry corrects an
earlier entry, it entirely replaces the original entry. In this case, the trial court’s
June 24 entry mistakenly stated that Thompson’s “sentencing hearing commenced
on June 10, 2006.” The sentencing hearing actually began on June 10, 2010. On
July 1, 2010, the trial court entered a nunc pro tunc entry to change the erroneous
date in the June 24 entry. Thompson says we can look only to the nunc pro tunc
entry, and not to the June 24 entry, to evaluate compliance with Crim.R. 32(C).
{¶ 43} Thompson’s argument misconstrues the nature of a nunc pro tunc
entry. As we recently explained in Lester, 130 Ohio St.3d 303, 2011-Ohio-5204,
958 N.E.2d 142, the phrase “ ‘[n]unc pro tunc’ * * * is commonly defined as
‘[h]aving retroactive legal effect through a court’s inherent power.’ ” Id. at ¶ 19,
quoting Black’s Law Dictionary 1174 (9th Ed.2009). Therefore, “a nunc pro tunc
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entry by its very nature applies retrospectively to the judgment it corrects.” Id.
But a nunc pro tunc entry does not replace the original judgment entry; it relates
back to the original entry. Thus, we need not disregard the trial court’s June 24
entry.
{¶ 44} Second, Thompson claims that there is no final, appealable order
here because the trial court’s June 23 sentencing opinion contains an error. The
opinion sentenced Thompson on Count 3 (third-degree felony escape), despite the
fact that the court had previously dismissed that count. In the opinion, the court
purported to merge Count 3 with Count 4 (fifth-degree felony escape) and then
sentenced Thompson to five years on the two merged counts. This five-year
sentence would have been appropriate for Count 3, but it exceeded the maximum
12-month punishment permitted for Count 4 alone. See R.C. 2929.14(A)(5)
(authorizing a maximum sentence of 12 months’ imprisonment for a fifth-degree
felony); R.C. 2929.14(A)(3) (authorizing a maximum sentence of five years’
imprisonment for a third-degree felony). Because Thompson should have been
sentenced only on Count 4, not on Count 3, he could not have been sentenced to
the five-year sentence the court imposed.
{¶ 45} Contrary to Thompson’s claims, the trial court’s mistaken reference
to a five-year sentence in the June 23 sentencing opinion does not deprive this
court of jurisdiction over this appeal. “[S]entencing errors are not jurisdictional.”
Manns v. Gansheimer, 117 Ohio St.3d 251, 2008-Ohio-851, 883 N.E.2d 431, ¶ 6
(holding that extraordinary writs are not available to remedy sentencing errors).
Instead, sentencing errors can be remedied on appeal in the ordinary course of
law. State ex. rel Davis v. Cuyahoga Cty. Court of Common Pleas, 127 Ohio
St.3d 29, 2010-Ohio-4728, 936 N.E.2d 41, ¶ 2 (the erroneous inclusion of
postrelease control in a sentencing entry can be remedied on appeal).
{¶ 46} To determine the appropriate remedy here, we need only look to
the trial court’s entries. Although the June 23 sentencing opinion mistakenly
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referred to Count 3 and a five-year sentence for escape, the trial court’s June 24
journal entry eliminated these erroneous references. The June 24 entry states that
for the crime of escape, Thompson is sentenced to only 12 months, and only on
Count 4. The entry removes any reference to a five-year sentence for escape and
contains no sentence whatsoever for Count 3. The record therefore clearly
indicates that for the crime of escape, the trial court intended to impose a 12-
month sentence on a single fifth-degree-felony count. Accordingly, this is the
only escape sentence that applies to Thompson.
{¶ 47} In sum, we may properly consider both the trial court’s June 24
entry and its sentencing opinion to evaluate compliance with Crim.R. 32(C).
These two documents satisfy the requirements for a final, appealable order, and
thus we do have jurisdiction over Thompson’s appeal. We also address the error
in the June 23 sentencing opinion by clarifying that Thompson is subject to only a
12-month sentence for escape, in accordance with the trial court’s intent as
expressed in its June 24 entry.
B. Juror Issues
1. Batson Challenge
{¶ 48} In proposition of law No. II, Thompson argues that the prosecution
excused prospective juror No. 6 because of her race, in violation of Batson v.
Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). According to
Thompson, the trial court erred by overruling his objection to the state’s
peremptory challenge. We disagree.
a. Batson v. Kentucky
{¶ 49} A defendant has “the right to be tried by a jury whose members are
selected pursuant to nondiscriminatory criteria.” Id. at 85-86. Accordingly, a
constitutional violation occurs when the prosecution challenges “potential jurors
solely on account of their race or on the assumption that black jurors as a group
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will be unable impartially to consider the State’s case against a black defendant.”
Id. at 89; see also Sixth and Fourteenth Amendments to the U.S. Constitution.
{¶ 50} In Batson, the United States Supreme Court established a three-step
test for adjudicating race-based challenges. See id. at 96. “First, the opponent of
the peremptory challenge must make a prima facie case of racial discrimination.”
State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d 433, ¶ 106.
{¶ 51} If the opponent satisfies that burden, then “the burden shifts to the
State to come forward with a neutral explanation for challenging black jurors.”
Batson at 97. “At this step of the inquiry, the issue is the facial validity of the
prosecutor’s explanation.” Hernandez v. New York, 500 U.S. 352, 360, 111 S.Ct.
1859, 114 L.Ed.2d 395 (1991). Although it is not enough to simply deny a
discriminatory motive or assert good faith, Batson, 476 U.S. at 98, 106 S.Ct.
1712, 90 L.Ed.2d 69, the “explanation need not rise to the level justifying exercise
of a challenge for cause,” id. at 97. See also State v. White, 85 Ohio St.3d 433,
437, 709 N.E.2d 140 (1999). Accordingly, “ ‘[u]nless a discriminatory intent is
inherent in the prosecutor’s explanation, the reason offered will be deemed race
neutral.’ ” Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834(1995), quoting Hernandez at 360.
{¶ 52} Finally, “the trial court must decide based on all the circumstances,
whether the opponent has proved purposeful racial discrimination.” Bryan at
¶ 106; see also Batson at 98. The court must “assess the plausibility of” the
prosecutor’s reason for striking the juror “in light of all evidence with a bearing
on it.” Miller-El v. Dretke, 545 U.S. 231, 252, 125 S.Ct. 2317, 162 L.E.2d 196(2005). Relevant factors may include “the prosecutor’s demeanor; * * * how
reasonable, or how improbable, the explanations are; and * * * whether the
proffered rationale has some basis in accepted trial strategy.” Miller-El v.
Cockrell, 537 U.S. 322, 339, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). “In
addition, race-neutral reasons for peremptory challenges often invoke a juror’s
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demeanor * * *, making the trial court’s firsthand observations of even greater
importance.” Snyder v. Louisiana, 552 U.S. 472, 477, 128 S.Ct. 1203, 170
L.Ed.2d 175 (2008).
{¶ 53} The trial court’s finding at step three “is entitled to deference, since
it turns largely ‘on evaluation of credibility.’ ” White at 437, quoting Batson at
98, fn. 21. Accordingly, “[a] trial court’s findings of no discriminatory intent will
not be reversed on appeal unless clearly erroneous.” Bryan, 101 Ohio St.3d 272,
2004-Ohio-971, 804 N.E.2d 433, at ¶ 106; see also Cockrell at 340. If, however,
a trial court does err in applying Batson, the error is structural. See United States
v. McFerron, 163 F.3d 952, 955-956 (6th Cir.1998) (cataloging federal appeals
courts that have unanimously and “resoundingly” rejected arguments that Batson
errors are subject to harmless-error review).
b. Voir Dire and Dismissal of Prospective Juror No. 6
{¶ 54} During individual voir dire, the parties questioned prospective juror
No. 6, an African-American, about her prior service as a juror in a criminal trial.
Defense counsel inquired about the verdict in the prior case, and prospective juror
No. 6 stated, “It was a hung jury.” Defense counsel did not ask further questions
on the matter.
{¶ 55} Later, the prosecutor asked what he called “follow-up question[s]”
about the hung jury. He specifically inquired whether prospective juror No. 6 had
been the holdout:
MR. LOPRINZI: Were you—you were one side and
some—the way you stated that, it sounded like maybe you were
the—
[PROSPECTIVE] JUROR SIX: There was one juror.
MR. LOPRINZI: Who was holding out?
[PROSPECTIVE] JUROR SIX: Yes.
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MR. LOPRINZI: And you were with the others?
[PROSPECTIVE] JUROR SIX: Am I supposed to say?
MR. LOPRINZI: It’s up to you.
THE COURT: It’s up to you. The issue that he’s really
getting at is, you know, will that in any way affect—
[PROSPECTIVE] JUROR SIX: No.
THE COURT: Whether you were the one or you were the
other 11—with the other 11.
MR. LOPRINZI: Well, we want to also know if you were
in a jury here and you’re one way for guilt or innocence either
way, are you willing to stand up for your ground? And so that’s
why I was asking. It’s hard to do, and that’s why I was curious if
you’re able to do that.
Were you the one who—
[PROSPECTIVE] JUROR SIX: I think he had some
extenuating circumstances.
MR. LOPRINZI: Very good. Thank you.
The prosecutor later used a peremptory challenge to excuse prospective juror No.
6. Thompson immediately made a Batson challenge.
{¶ 56} The state offered two race-neutral explanations for challenging the
prospective juror. First, the prosecutor explained that he wanted to excuse
prospective juror No. 6 because she had “implied that she was the sole holdout”
when serving as a juror in a prior criminal trial. He reasoned that although seven
of the 50 prospective jurors examined that day had previously served on a
criminal-trial jury, prospective juror No. 6 was the only one who had been on a
jury that had not reached a verdict, and she appeared to have been the sole
holdout.
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{¶ 57} The prosecutor and judge then discussed whether prospective juror
No. 6 had in fact indicated that she had been a holdout. The prosecutor opined, “I
think everybody knew that.” Initially, the trial judge disagreed, emphasizing,
“We don’t know” because “[w]e didn’t ask.” The judge asked the prosecutor if
he had another reason for challenging the prospective juror.
{¶ 58} At this point, the prosecutor offered an alternative explanation:
prospective juror No. 6 worked as a receptionist for the sheriff’s department and
one of her relatives had worked at the prosecutor’s office. The judge expressed
skepticism that the state would object to seating a juror because of her
connections with these two offices and declined to accept this reason.
{¶ 59} The prosecutor then returned to the holdout explanation, citing it as
the “main reason” for the peremptory challenge. He elaborated on why “it was
very clear to me that [prospective juror No. 6] was saying that she was the
[holdout].” According to the prosecutor, when he asked the prospective juror
whether she was the holdout, she “kind of smiled like she was the holdout,” and
he had the impression “that she just didn’t want to say it.” The prosecutor did not
want to force the prospective juror to answer the question directly because he did
not want a potential juror to resent him. But he was firmly convinced that she had
been the holdout.
{¶ 60} After probing the prosecutor’s reasoning, the judge stated, “You’re
saying that you have come to the conclusion, the firm conclusion, that she was a
holdout juror.” The judge acknowledged that the reason was race-neutral and
explained that she had to decide whether the reason was “credible or pretextual.”
Ultimately, the judge rejected Thompson’s Batson challenge, and prospective
juror No. 6 was excused.
c. The Trial Court Complied with Batson
{¶ 61} Thompson argues that the trial court’s Batson analysis was
improper and that the dismissal of prospective juror No. 6 violated his
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January Term, 2014
constitutional rights. But our review of the record confirms that the trial court
properly applied the Batson analysis to reject Thompson’s challenge.
{¶ 62} Thompson’s argument turns solely on whether the trial court
properly conducted the third step of the Batson inquiry, which requires a court to
assess the plausibility of the prosecutor’s reason for striking a prospective juror
“in light of all evidence with a bearing” on the issue. Dretke, 545 U.S. at 252,
125 S.Ct. 2317, 162 L.E.2d 196. At this stage of analysis, a trial court may “not
simply accept a proffered race-neutral reason at face value,” but instead “must
examine the prosecutor’s challenges in context to ensure that the reason [was] not
merely pretextual.” State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873
N.E.2d 1263, ¶ 65. In short, the trial court must decide whether the prosecutor’s
reason is credible.
{¶ 63} Although a trial court must make a credibility determination, courts
need not make detailed factual findings to comply with Batson. Id. at ¶ 98.
Rather, “ ‘[a]s long as a trial judge affords the parties a reasonable opportunity to
make their respective records, he may express his Batson ruling on the credibility
of a proffered race-neutral explanation in the form of a clear rejection or
acceptance of a Batson challenge.’ ” Id., quoting Messiah v. Duncan, 435 F.3d
186, 198 (2d Cir.2006).
{¶ 64} Here, the trial court fully explored the prosecutor’s proffered
explanations for the challenge in order to evaluate their credibility. Initially, the
court expressed doubts about the holdout explanation. But after considerable
probing and discussion about the basis for the prosecutor’s belief that the
prospective juror had been a holdout, the court denied Thompson’s Batson
challenge. This denial was “itself a finding at the third step” of Batson, reflecting
the court’s determination that the holdout explanation was credible. Smulls v.
Roper, 535 F.3d 853, 863 (8th Cir.2008); see also Frazier at ¶ 98.
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{¶ 65} Therefore, the trial court did not err by denying Thompson’s
Batson challenge, and we reject proposition of law No. II.
2. Inadequate Voir Dire
{¶ 66} Thompson next argues, in proposition of law No. III, that the trial
court violated his constitutional rights by failing to conduct further inquiries about
pretrial publicity after one prospective juror indicated that members of the jury
pool had been discussing Thompson’s withdrawn guilty plea. See Sixth and
Fourteenth Amendments to the U.S. Constitution.
{¶ 67} On April 13, 2009, Thompson entered a guilty plea to the charges
against him. Months later, the trial judge became concerned about Thompson’s
plea and scheduled a hearing to retake the plea. On December 18, 2009,
Thompson requested a jury trial.
{¶ 68} Voir dire began on May 17, 2010, and lasted for five days. The
trial judge and parties questioned prospective jurors about pretrial publicity during
individual voir dire before conducting any group voir dire. At the time of
questioning, the trial judge knew that a recent newspaper article had detailed the
crime, as well as Thompson’s previous entry—and then withdrawal—of a guilty
plea. Therefore, the judge asked prospective jurors whether they were aware of
the facts or the procedural history of the case.
{¶ 69} As Thompson concedes, the judge excused every prospective juror
who knew about his withdrawn guilty plea after individual voir dire, with the
exception of prospective juror No. 51. During individual voir dire, prospective
juror No. 51 stated that she knew that Thompson had “actually pleaded guilty and
then he recanted.” The judge did not immediately excuse the prospective juror,
because she assured the court that she would put the past guilty plea out of her
mind and would not tell any other prospective jurors about it. It was not until
later, during general voir dire, that the trial court ultimately excused prospective
juror No. 51.
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January Term, 2014
{¶ 70} Prospective juror No. 51’s knowledge of the guilty plea is relevant
because later in individual voir dire, prospective juror No. 100 revealed that he
had heard someone else discussing the guilty plea “in the courtroom or the jury
pool.” Although prospective juror No. 100 was unable to identify the source of
the information, he explained that he had “heard that originally there was a guilty
plea but there was a technical problem or something and now it’s a not guilty.”
The prospective juror indicated that this information made it difficult for him to
be impartial, and the trial court excused him for cause.
{¶ 71} Thompson now objects that the trial judge, after learning that
prospective jurors may have been discussing the withdrawn guilty plea, should
have further questioned those prospective jurors who had already completed
individual voir dire. In addition, Thompson suggests that the trial court should
have questioned prospective juror No. 100 further to learn who was talking about
Thompson’s prior plea.
{¶ 72} “The manner in which voir dire is to be conducted lies within the
sound discretion of the trial judge.” State v. Lorraine, 66 Ohio St.3d 414, 418,
613 N.E.2d 212 (1993). The trial court has “great latitude in deciding what
questions should be asked on voir dire.” Mu’Min v. Virginia, 500 U.S. 415, 424,
111 S.Ct. 1899, 114 L.Ed.2d 493 (1991). In addition, we have not adopted a per
se rule that requires a trial court to inquire into “ ‘every instance of alleged [juror]
misconduct.’ ” State v. Sanders, 92 Ohio St.3d 245, 253, 750 N.E.2d 90 (2001),
quoting United States v. Hernandez, 921 F.2d 1569, 1577 (11th Cir.1991). We
will not find prejudicial error in the trial court’s examination of the venire absent
a clear abuse of discretion. See State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-
5981, 836 N.E.2d 1173, ¶ 28.
{¶ 73} Here, an even more deferential standard applies because Thompson
did not raise either objection before the trial court. Accordingly, we review
Thompson’s claim only for plain error. See, e.g., State v. Brinkley, 105 Ohio
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St.3d 231, 2005-Ohio-1507, 824 N.E.2d 959, ¶ 64. To prevail, Thompson must
show that an error occurred, that the error was plain, and that the error affected his
substantial rights. See Crim.R. 52(B); State v. Barnes, 94 Ohio St.3d 21, 27, 759
N.E.2d 1240 (2002) (an error affects substantial rights only if it affected the
outcome of the trial). We take “[n]otice of plain error * * * with the utmost
caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978),
paragraph three of the syllabus.
{¶ 74} The trial judge did not conduct further individual voir dire of
prospective juror Nos. 1 through 99 after speaking with prospective juror No. 100,
but she did inquire further. On May 21, 2010, the judge conducted general voir
dire of all the remaining prospective jurors. During this conversation, the court
made several general inquiries, any of which would have prompted a prospective
juror to indicate that he or she had learned more about the case from the jury pool.
{¶ 75} With respect to publicity, the judge stated: “I * * * had told you
that you were not to read the paper, discuss this with your family, watch the news.
Is there anyone who has had a family member say anything to them, accidentally
flipping the channels saw something about this or read something in the paper
without realizing it was this case?” One prospective juror responded, spoke
privately to the judge, and was excused.
{¶ 76} A few minutes later, the judge posed several broader inquiries
about whether any prospective juror had anything on his or her mind that would
prevent him or her from being objective and impartial. First, she inquired, “Is
there anyone who, as you sit here now, says, I don’t think I can * * * set aside
personal opinions. I can’t set aside any knowledge that I might have. Because
many of you had some knowledge, but not very much knowledge.” Next, she
asked whether anyone was thinking, “I would have to lay aside and erase from my
mind, just like she told me in the original voir dire, anything I know, and I just
20
January Term, 2014
don’t think I can do that? No one is raising their hand.” Finally, she queried,
“Anyone have any thoughts or ideas about what you’ve been through so far that
you can’t start fresh, open mind, when we start the trial on Monday? Anyone for
whom that is a problem?” No one responded.
{¶ 77} These questions during group voir dire, coupled with the judge’s
earlier inquiries about publicity during individual voir dire, were sufficient to
“ ‘reasonabl[y] assur[e] that prejudice would be discovered if present.’ ” United
States v. Chagra, 669 F.2d 241, 250 (5th Cir.1982), quoting United States v. Nell,
526 F.2d 1223, 1229 (5th Cir.1976). Prospective jurors had repeated
opportunities, even after the completion of individual voir dire, to come forward
with any new knowledge they had gained about the case, including information
from other prospective jurors and information about Thompson’s guilty plea. In
short, the trial court did not err by failing to ask prospective juror No. 100
additional questions, or by failing to conduct additional individual voir dire of
prospective juror Nos. 1 through 99.
{¶ 78} Moreover, Thompson has failed to establish that the alleged error
would have altered the outcome of his trial. Under these circumstances, the trial
court need not have concerned itself with the possibility that a juror might
theoretically “have difficulty in disbelieving or forgetting a defendant’s opinion of
his own guilt.” Chagra at 251, fn. 11. For these reasons, we reject proposition of
law No. III.
3. Rehabilitating a Prospective Juror Who Is Against the Death Penalty
{¶ 79} In proposition of law No. IV, Thompson argues that the trial court
violated his constitutional rights by refusing “to follow the standard for exclusion
of a capital juror expressing reticence about the death penalty” and by not
allowing defense counsel to question prospective juror No. 2 about her views on
the death penalty. See Sixth, Eighth, and Fourteenth Amendments to the U.S.
Constitution; Ohio Constitution, Article I, Sections 9 and 10; R.C. 2945.25(C).
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{¶ 80} During individual voir dire, prospective juror No. 2 informed the
court that the days scheduled for trial would be “the worst time” possible for her
to be away from work. Prospective juror No. 2 worked as a school secretary, and
she indicated that she would “have three days to close up shop”—June 9, 10, and
11—after the students’ last day of school. The judge explained to the prospective
juror that she would be needed back on June 10 and asked whether anyone else
could perform the prospective juror’s job for her during that period. She replied,
“Unfortunately not. I have an aid[e] that answers the phone and takes care of the
sick children, but they don’t have substitute secretaries.” The judge credited this
explanation, later commenting to counsel, “No schools have any extra people
anymore because of budget cuts. I believe her when she says she’s the only
person.”
{¶ 81} After a lengthy discussion of the prospective juror’s views on the
death penalty, the trial judge said she wanted to excuse prospective juror No. 2 for
cause. The record indicates that the judge contemplated two independent bases
for excusing the prospective juror. First, the prospective juror had a scheduling
conflict. Second, the judge determined that the prospective juror had voiced an
unequivocal opposition to the death penalty.
{¶ 82} Before the court excused prospective juror No. 2, defense counsel
requested an opportunity to further question the prospective juror about her views
on the death penalty. After verifying that defense counsel did not want to
question the prospective juror about her schedule, the judge concluded that
additional questioning was unnecessary. The judge explained that prospective
juror No. 2’s scheduling conflict was “sufficient” to excuse her, regardless of her
views on the death penalty.
{¶ 83} Thompson does not allege any error in dismissing prospective juror
No. 2 based on her scheduling conflict. The Revised Code and the Rules of
Criminal Procedure both include catchall provisions allowing prospective jurors
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January Term, 2014
to be challenged for cause if they are “unsuitable for any other cause to serve as a
juror.” R.C. 2945.25(O); Crim.R. 24(C)(14). A trial court’s application of this
provision is reversible only for an abuse of discretion. See State v. Leonard, 104
Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 53. Here, the trial court
reasonably exercised its discretion by excusing prospective juror No. 2 because of
a scheduling conflict.
{¶ 84} Because the trial court had a valid, independent reason for excusing
the prospective juror, which Thompson has not challenged, we reject proposition
of law No. IV.
4. Failure to Life-Qualify Prospective Jurors
{¶ 85} In proposition of law No. V, Thompson asserts that his rights to a
fair trial, equal protection, and due process were violated when the trial court
“death qualified” his jury but did not “life-qualify” prospective jurors. See
Fourteenth Amendment to the U.S. Constitution. Thompson does not allege that
the trial court prevented defense counsel from questioning prospective jurors on
this point; instead, he argues that the trial court’s voir dire reflected the court’s
bias in favor of the prosecution.
{¶ 86} As an initial matter, the trial court did question Thompson’s
prospective jurors to avoid seating “death-prone” jurors. The court did not
individually life-qualify every prospective juror. However, upon reconvening for
general voir dire, the court said the following to the entire group of prospective
jurors:
If any of you are sitting on this jury and saying I’m going
to make sure that if he’s found guilty, he gets the death penalty, or
I’m sitting on this jury to make sure that if he’s found guilty, he
does not get the death penalty, now is the time that you have to tell
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us. And, again, no shame in it, no harm. Only you know your
hearts.
But if you have any of those ideas in your head, you
need to tell us now.
No one responded.
{¶ 87} More important, this court has repeatedly rejected these same
arguments in prior cases. There is no constitutional or statutory right to have the
trial court life-qualify each prospective juror, even when the court sua sponte
death-qualifies each prospective juror. See State v. Hale, 119 Ohio St.3d 118,
2008-Ohio-3426, 892 N.E.2d 864, ¶ 80; State v. Davis, 116 Ohio St.3d 404, 2008-
Ohio-2, 880 N.E.2d 31, ¶ 76-77; State v. Stojetz, 84 Ohio St.3d 452, 705 N.E.2d
329 (1999), syllabus.
{¶ 88} For these reasons, we reject proposition of law No. V.
C. Venue
{¶ 89} In proposition of law No. VI, Thompson claims that the trial court
violated his rights to due process and to a fair trial by denying his motion for a
change of venue. According to Thompson, “[t]he pretrial publicity surrounding
[his] case so infected the jury that he was unable to obtain a fair trial in Summit
County.”
1. Pretrial Publicity and Venue
{¶ 90} Trial courts have a “duty to protect” criminal defendants from
“inherently prejudicial publicity” that renders a jury’s deliberations unfair.
Sheppard v. Maxwell, 384 U.S. 333, 363, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966).
Even so, “pretrial publicity—even pervasive, adverse publicity—does not
inevitably lead to an unfair trial.” Nebraska Press Assn. v. Stuart, 427 U.S. 539,
554, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976). “[T]he best test of whether
prejudicial pretrial publicity has prevented obtaining a fair and impartial jury from
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January Term, 2014
the locality” is “a careful and searching voir dire.” State v. Bayless, 48 Ohio St.2d
73, 98, 357 N.E.2d 1035 (1976), death penalty vacated on other grounds, 438
U.S. 911, 98 S.Ct. 3135, 57 L.Ed.2d 1155.
{¶ 91} Decisions about whether to order a change of venue “rest[] largely
in the discretion of the trial court.” State v. Fairbanks, 32 Ohio St.2d 34, 37, 289
N.E.2d 352 (1972). We will not reverse a trial court’s venue ruling “unless is it
clearly shown that the trial court has abused its discretion.” Id. An abuse of
discretion is more than a mere error of law or judgment; instead, it implies that a
trial court’s decision was unreasonable, arbitrary, or unconscionable. Blakemore
v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
2. Motion for Change of Venue
{¶ 92} Thompson’s counsel moved for a change of venue on February 3,
2010. The trial court held the motion in abeyance, explaining that it was
“required to try to seat a jury, notwithstanding the fact that there’s been a lot of
publicity. If we cannot seat a jury, that’s when we would begin the process of
changing venue and not before.”
{¶ 93} On May 17, 2010, the trial court called 150 prospective jurors and
asked them to complete a questionnaire. Voir dire then proceeded in two stages.
First, the judge and counsel questioned prospective jurors individually about their
exposure to pretrial publicity and their attitudes about the death penalty.
Throughout this process, the trial court dismissed prospective jurors who
indicated significant knowledge of the case. In particular, the court excused the
prospective jurors who knew that Thompson had pled guilty and had later
withdrawn his plea.
{¶ 94} By May 20, 2010, the judge and parties had identified 50 qualified
prospective jurors during individual voir dire. The judge announced, “[W]e’re
now going to stop individual voir dire, with the consent of both parties, correct?”
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The parties indicated their consent. The judge then denied Thompson’s motion
for a change of venue.
3. No Actual Bias
{¶ 95} Ordinarily, to prove that a trial court erred by denying a change of
venue, a defendant must show that at least one prospective juror was actually
biased. State v. Treesh, 90 Ohio St.3d 460, 464, 739 N.E.2d 749 (2001). Here,
Thompson does not identify any evidence of actual bias, and the record does not
bear out such concerns.
{¶ 96} The trial court seated 12 jurors and four alternates. Thompson did
not object to any of these jurors. Five of the jurors and two of the alternates knew
nothing about the case. Three jurors had knowledge of the basic facts of
Thompson’s case: a police officer was shot and killed during a traffic stop. One
knew only that the incident had occurred two years prior, and another knew that
the incident occurred in Twinsburg and knew the victim’s name. The last two
jurors recalled nothing about the underlying facts of the case, but one knew that
the trial had been delayed a few times, and the other had heard a news report that
the case was going to trial soon. The remaining two alternates knew that the case
involved a murder in Twinsburg, and one of them also knew that the victim was a
police officer.
{¶ 97} Every juror and alternate who had any prior knowledge of the case
unequivocally had stated in individual voir dire either that he or she could put that
knowledge to the side, or that he or she had formed no opinions about the case or
Thompson’s guilt. The trial court had deemed the then prospective jurors
qualified and had accordingly denied Thompson’s motion for a change of venue.
Later, during group voir dire, the court again verified that every prospective juror
would set aside any preexisting knowledge, thoughts, or ideas about the case.
{¶ 98} Thompson argues that the trial court erred because courts may not
rely on a prospective juror’s subjective evaluation of his or her own ability to be
26
January Term, 2014
fair and impartial. In Murphy v. Florida, 421 U.S. 794, 800, 95 S.Ct. 2031, 44
L.Ed.2d 589 (1975), the United States Supreme Court explained that a “juror’s
assurances that he is equal to this task cannot be dispositive of the accused’s
rights,” but left it “open to the defendant” to demonstrate a juror’s actual bias.
Even so, the judge “who sees and hears the juror,” Wainwright v. Witt, 469 U.S.
412, 426, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), has discretion “to accept [a
juror’s] assurances that he would be fair and impartial and would decide the case
on the basis of the evidence,” State v. Jones, 91 Ohio St.3d 335, 338, 744 N.E.2d
1163 (2001). Under the circumstances here, the trial court reasonably credited the
jurors’ assurances. We discern no evidence of actual bias here.
4. No Presumed Prejudice
{¶ 99} Nevertheless, Thompson urges us to presume prejudice.
{¶ 100} The United States Supreme Court has held that in certain rare
cases, pretrial publicity is so damaging that courts must presume prejudice even
without a showing of actual bias. See, e.g., Sheppard, 384 U.S. 333, 86 S.Ct.
1507, 16 L.Ed.2d 600. But this presumption “attends only the extreme case.”
Skilling v. United States, 561 U.S. 358, 361, 130 S.Ct. 2896, 177 L.Ed.2d 619(2010); see also Treesh, 90 Ohio St.3d at 464, 739 N.E.2d 749.
{¶ 101} To prevail on a claim of presumed prejudice, a defendant must
make “ ‘a clear and manifest showing * * * that pretrial publicity was so
pervasive and prejudicial that an attempt to seat a jury would be a vain act.’ ”
State v. Warner, 55 Ohio St.3d 31, 46, 564 N.E.2d 18 (1990), quoting State v.
Herring, 21 Ohio App.3d 18, 486 N.E.2d 119 (9th Dist.1984), syllabus.
Thompson makes several arguments in support of presuming prejudice here, but
none of them is persuasive.
{¶ 102} First, Thompson points to what he calls “the extreme amount of
pre-trial publicity surrounding this case” and the fact that the jury pool was
“replete with potential jurors who had been extensively prejudiced by media
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accounts.” According to Thompson, at least nine jurors had read, heard,
discussed, or seen an account of Miktarian’s death, and 20 prospective jurors were
excused because they knew too much, knew about Thompson’s guilty plea, or
believed Thompson was guilty. But the fact that seven jurors and two alternates
knew something about the case is hardly dispositive. As discussed above, jurors
need not be totally ignorant about the facts of a case, and none of these
individuals was actually biased. See Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct.
1639, 6 L.Ed.2d 751 (1961). The fact that the trial court excused 20 prospective
jurors because they knew too much about the case confirms only that the court
was doing its job to ensure that Thompson’s jury would not be unfair or biased.
{¶ 103} Second, Thompson argues that we should presume prejudice in
light of discussions between prospective jurors at the courthouse. To this end, he
points again to prospective juror No. 100’s statement that he heard someone at the
courthouse discussing Thompson’s withdrawn guilty plea. He also notes that
prospective juror No. 86, who was later seated as an alternate, told the judge she
had overheard prospective jurors discussing the case in the hallways. Under the
circumstances, Thompson says, the judge should have inquired further. And
because she did not, he says we should presume prejudice now.
{¶ 104} These are not compelling reasons to presume prejudice. First, as
discussed in proposition of law No. III, the trial court did not err by failing to
conduct further individual questioning of the already qualified prospective jurors
after hearing that some prospective jurors had been discussing the case. Second,
the record does not indicate that any seated or alternate juror knew about
Thompson’s past guilty plea. Third, the conversation overheard by prospective
juror No. 86 was of no import. She heard people speculating only about whether
this was “that murder case in Twinsburg.”
{¶ 105} Finally, Thompson analogizes the facts of his case to those in
other cases in which the United States Supreme Court has presumed prejudice.
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January Term, 2014
See Sheppard, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600; Rideau v. Louisiana,
373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963); Irvin, 366 U.S. 717, 81 S.Ct.
1639, 6 L.Ed.2d 751. But the publicity in this case did not even begin to approach
the level of pervasive communal influence present in those cases.
{¶ 106} In sum, Thompson fails to establish actual bias on his jury or to
demonstrate that this is the rare case in which we must presume prejudice. As a
result, we reject proposition of law No. VI.
D. Improper Evidence
{¶ 107} In proposition of law No. VII, Thompson claims that the trial
court violated Ohio Evid.R. 403 and 404, as well as his constitutional rights, when
it permitted Steven Bartz to testify about statements Thompson allegedly made at
Rav’s Bar. See Sixth, Eighth, and Fourteenth Amendments to the U.S.
Constitution; Ohio Constitution, Article 1, Sections 9 and 10.
{¶ 108} The trial court initially ruled on the admissibility of this evidence
before the trial began. On May 24, 2010, the judge indicated her understanding
that Bartz had overheard Thompson making five statements in Rav’s Bar shortly
before night of the murder. The defense objected that all these statements,
although probative, were unfairly prejudicial. See Evid.R. 403. The court
decided to exclude two statements that had a racial component, but found that the
remaining three statements were not unfairly prejudicial: (1) “There’s demons in
me,” (2) “I will kill if another f* * *er threatens me,” and (3) “Nobody
understands the s* * * I’ve done and I’m capable of. I can’t even talk about it.”
{¶ 109} The prosecutor quoted Thompson’s three statements during his
opening argument and introduced them through Bartz’s testimony. Bartz
identified Thompson in the courtroom and testified that he saw Thompson sitting
with a female at Rav’s Bar sometime after 11:30 p.m. on July 12, 2008.
According to Bartz, Thompson was “pretty drunk” and was slamming his glass on
the bar. Bartz recalled overhearing Thompson making some statements that made
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Bartz “a little bit angry.” Bartz then referred to his own prior written statement,
given to police a day or two after the murder, to relate Thompson’s three
statements to the jury.
{¶ 110} Outside the presence of the jury, the trial court invited defense
counsel to “elaborate” on his “objection to the three statements, just for the
record.” The defense argued that because the statements were general—and not
specifically about killing a police officer—they were “much more prejudicial
* * * than probative.” The trial judge then explained that she had excluded “the
statements that appeared to be slightly more racially charged” in order to “avoid[]
any kind of sense of horror or appealing to an instinct to punish.” The court
found that the other three statements were “relevant, probative and not unduly
prejudicial.”
{¶ 111} “A trial court enjoys broad discretion in admitting evidence.”
Long, 53 Ohio St.2d at 98, 372 N.E.2d 804. We “will not reject an exercise of
this discretion unless it clearly has been abused and the criminal defendant
thereby has suffered material prejudice.” Id.; see also State v. Sage, 31 Ohio
St.3d 173, 510 N.E.2d 343 (1987), paragraph two of the syllabus.
{¶ 112} First, Thompson argues that the three statements repeated by
Bartz were improperly admitted under Evid.R. 403. Evid.R. 403(A) states that a
judge must exclude evidence, regardless of its relevance, if “its probative value is
substantially outweighed by the danger of unfair prejudice.” Unfairly prejudicial
evidence usually appeals to the jury’s emotions, rather than to intellect. Oberlin
v. Akron Gen. Med. Ctr., 91 Ohio St.3d 169, 172, 743 N.E.2d 890 (2001).
{¶ 113} Thompson says that the statements were not probative, because
they did not go to his identity as a shooter and because the defense did not contest
that he was the shooter. But the state had to prove more than just Thompson’s
identity as the shooter; it also had to prove that Thompson purposely killed
Miktarian. State v. Strodes, 48 Ohio St.2d 113, 116, 357 N.E.2d 375 (1976).
30
January Term, 2014
Thompson’s statements that he would kill if threatened and that no one
understood what he was capable of were relevant to show the purposefulness of
the killing. And his statement that there were demons inside him buttressed the
statement that he would kill if threatened. Therefore, Thompson is wrong to say
that the prosecution introduced these statements “to prove only that he was angry
and dangerous.” (Emphasis added.)
{¶ 114} Thompson also contends that this evidence was unfairly
prejudicial because the statements “emotionally * * * painted a picture of an
unstable, angry, generally dangerous person” and thereby encouraged the jury to
decide the case on the basis of fear, not reason. But even assuming that
Thompson’s characterization of the statements is reasonable, he cannot show that
the trial court’s balancing was unreasonable, arbitrary, or unconscionable.
Blakemore, 5 Ohio St.3d at 219, 450 N.E.2d 1140. As a result, we defer to the
trial court’s finding that the statements were admissible under Evid.R. 403.
{¶ 115} Second, Thompson objects to these statements as improper
character evidence, admitted in violation of Evid.R. 404(A)(1). This rule
provides: “Evidence of a person’s character or a trait of character is not
admissible for the purpose of proving action in conformity therewith on a
particular occasion * * *.” Because Thompson did not raise this objection at trial,
we review his claim for plain error. See State v. Perry, 101 Ohio St.3d 118, 2004-
Ohio-297, 802 N.E.2d 643, ¶ 14.
{¶ 116} Contrary to Thompson’s assertions, the prosecution did not
introduce this evidence in order to impermissibly portray him as an angry person,
as someone with a general proclivity to violence, or even as someone who
disliked law enforcement. Instead, this evidence of Thompson’s statements on
the night of the crime was probative of his intent when he killed Miktarian a few
hours later. Therefore, this evidence did not violate Evid.R. 404.
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{¶ 117} Moreover, even if the admission of these three statements had
been improper, Thompson cannot show that they affected the outcome of his trial.
Ample evidence supported Thompson’s conviction for purposely murdering a
law-enforcement officer and the associated death specifications.
{¶ 118} For these reasons, we reject proposition of law No. VII.
E. Unqualified Experts
{¶ 119} Thompson argues, in proposition of law No. IX, that the trial
court violated Evid.R. 702 and his constitutional rights by permitting unqualified
expert witnesses to testify against him. See Fourteenth Amendment to the U.S.
Constitution; Ohio Constitution, Article I, Sections 10 and 16. He also claims that
the trial court breached its “duty to assess the relevancy and reliability of all
scientific evidence introduced at trial.”
{¶ 120} Pursuant to Evid.R. 702, a witness may testify as an expert when
three criteria are satisfied. First, the witness’s testimony must “either relate[] to
matters beyond the knowledge or experience possessed by lay persons or dispel[]
a misconception common among lay persons.” Evid.R. 702(A). Second, the
witness must be “qualified as an expert by specialized knowledge, skill,
experience, training, or education regarding the subject matter of the testimony.”
Evid.R. 702(B). A witness does not need either complete knowledge of a field or
special education or certification to qualify as an expert. State v. Baston, 85 Ohio
St.3d 418, 423, 709 N.E.2d 128 (1999). Finally, the witness’s testimony must be
“based on reliable scientific, technical, or other specialized information.” Evid.R.
702(C). In addition, all expert testimony remains subject to other evidentiary
rules.
{¶ 121} Because Thompson failed to raise any of his current expert-
testimony objections at trial, we review his claim for plain error only. Baston at
423.
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1. John Saraya
{¶ 122} According to Thompson, plain error occurred when John Saraya
testified because he was not qualified as an expert in blood-spatter analysis and
his testimony lacked the requisite scientific basis.
{¶ 123} At trial, Saraya identified himself as a special agent for the Ohio
Bureau of Criminal Identification and Investigation (“BCI”) with 12 years of
experience in the crime-scene unit. Saraya testified that as part of his training, he
“attend[ed] a 40-hour blood spatter school.” He summarized the history and
science of blood-spatter analysis for the jury. Saraya then testified regarding his
analysis of the blood spatter that had been found on Thompson’s shoes and
opined that the stains had come from a blood source no more than one foot away.
The blood source had been in front of and almost parallel to the shoes when the
shoes were spattered.
{¶ 124} Thompson raises multiple objections to this evidence. First, he
says that the trial court erred by allowing Saraya to testify because the state never
formally tendered him as an expert and the court never formally qualified him as
an expert. We have repeatedly found that no plain error occurs when the state
fails to formally tender an expert. See, e.g., State v. Hartman, 93 Ohio St.3d 274,
285-288, 754 N.E.2d 1150 (2001); Baston, 85 Ohio St.3d at 422-423, 709 N.E.2d
128.
{¶ 125} Further, Thompson’s objection that the trial court never engaged
in a threshold analysis of Saraya’s expert qualifications is unpersuasive. During
Saraya’s testimony, the trial court clearly stated that Saraya had “been qualified as
an expert.” Thus, Thompson knew that the court regarded Saraya as an expert but
never objected to his qualifications or testimony. Under these circumstances,
Thompson’s first argument fails.
{¶ 126} Second, Thompson argues that Saraya was not qualified to testify
as an expert. “Under Evid.R. 702, an expert may be qualified by knowledge,
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skill, experience, training, or education to give an opinion which will assist the
jury to understand the evidence and determine a fact at issue.” State v. Beuke, 38
Ohio St.3d 29, 43, 526 N.E.2d 274 (1988). Here, Saraya testified that he had
completed a 40-hour course on blood spatter and had been a member of BCI’s
crime-scene unit for 12 years. He also referred to his experience with blood-
spatter analysis in other investigations.
{¶ 127} Thompson says Saraya’s knowledge and experience were
inadequate, compared to other cases in which blood-spatter experts testified. But
a “witness need not be the best witness on the subject” to be qualified as an
expert.” Scott v. Yates, 71 Ohio St.3d 219, 221, 643 N.E.2d 105 (1994). Instead,
the witness simply “must demonstrate some knowledge on the particular subject
superior to that possessed by an ordinary juror.” (Emphasis added.) Id. Here,
Saraya’s training and experience qualified him to provide expert testimony on
blood-spatter analysis. See, e.g., Hartman, 93 Ohio St.3d at 285-288, 754 N.E.2d
1150.
{¶ 128} Third, Thompson argues that “the State failed to lay a proper
foundation for the reliability of the science of blood spatter.” He claims that
“blood spatter evidence may be misleading and confuse the jury.” But we have
already “recognized that blood-spatter analysis is a proper subject for expert
testimony.” Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, at ¶ 56.
{¶ 129} Fourth, Thompson objects that Saraya “did not give his opinion in
terms of a reasonable degree of scientific certainty.” We have “held that expert
witnesses in criminal cases can testify in terms of possibility rather than in terms
of a reasonable scientific certainty or probability.” State v. Lang, 129 Ohio St.3d
512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 77, citing State v. D’Ambrosio, 67 Ohio
St.3d 185, 191, 616 N.E.2d 909 (1993). In the criminal context, questions about
certainty go not to admissibility but to sufficiency of the evidence; they are
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matters of weight for the jury. Id. at ¶ 77. Thus, no error occurred when Saraya
testified in terms of possibilities.
{¶ 130} Fifth, Thompson argues that Saraya’s unreliable scientific
evidence violated his rights to confront the witnesses against him and to present a
complete defense. See Sixth and Fourteenth Amendments to the U.S.
Constitution. Thompson reasons that his Sixth Amendment rights were violated
because a criminal defendant cannot “confront a scientifically unreliable
possibility.” We rejected a similar argument in Lang at ¶ 83 and likewise reject
Thompson’s argument now. Thompson’s attorney did cross-examine Saraya, and
the defense had the opportunity to introduce contrary scientific evidence.
{¶ 131} Sixth, Thompson argues that Saraya’s blood-spatter evidence was
either not relevant and thus inadmissible under Evid.R. 401 and 402, or, even if
relevant, was unfairly prejudicial under Evid.R. 403(A). Thompson offers no
support for his claim that this testimony was not relevant. To the contrary, this
evidence was relevant because it indicated that Thompson shot Miktarian in the
head from a distance of no more than one foot, while Miktarian was lying on the
ground. This evidence corroborated the coroner’s statement that Miktarian was
shot four times in the head, twice from a distance of two or three feet and twice
when the gun was touching his skin. Accordingly, the trial court properly
admitted Saraya’s testimony under Evid.R. 401 and 402.
{¶ 132} The trial court also did not err in failing to exclude Saraya’s
testimony under Evid.R. 403. Evid.R. 403 provides that relevant evidence “is not
admissible if its probative value is substantially outweighed by the danger of
unfair prejudice.” Here, Thompson asserts that Saraya’s testimony, his courtroom
reenactment, and the prosecutor’s “exploitation of that testimony in closing
argument” were prejudicial. But he does not explain how that testimony was
unfairly prejudicial or why the danger of unfair prejudice outweighed the
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probative value of the testimony. Accordingly, the trial court did not err by
admitting this evidence under Evid.R. 403, let alone plainly err.
{¶ 133} Finally, even if any of Thompson’s above objections had merit,
we would still find no plain error. Saraya indicated that Miktarian’s head (the
blood source) was probably no more than one foot away from Thompson’s shoes
when the blood spatter was created. But the coroner also testified that Miktarian
was shot at close range—twice from a distance of two or three feet, and twice
with the gun touching his skin. And, consistent with Saraya’s testimony, Sergeant
Gina McFarren testified that Miktarian was probably lying on the ground when
the final three shots were fired because “he had the one shot in the head and then
the three shots in the side of the head.” Likewise, Thompson’s own witness,
Danielle Roberson testified that the officer was on the ground when the last shots
were fired. Thus, Thompson cannot show that Saraya’s testimony necessarily
affected the trial outcome.
2. Other BCI Analysts
{¶ 134} Thompson also argues that the trial court plainly erred by
allowing four other BCI analysts to testify as experts. Specifically, he objects that
the state failed to formally tender these witnesses as experts and that the trial court
failed to make a threshold determination of their qualifications.
{¶ 135} As an initial matter, the record supports the trial court’s decision
to treat these witnesses as experts in their respective fields.
{¶ 136} • Dale Laux is a forensic scientist who testified about his formal
education, his specialized training, and his 30 years of experience at BCI. He has
testified as a serology expert in more than 300 Ohio cases. In this case, Laux
testified primarily about his findings regarding the presence of blood on the items
in evidence.
{¶ 137} • Martin Lewis is a forensic scientist who testified about his
training, his prior employment, and his nine years of experience in BCI’s trace-
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evidence section. Lewis testified that he found gunshot residue in the sample
taken from Thompson’s hands.
{¶ 138} • Stacy Violi testified about her formal education, her BCI
training in serology and DNA, and her ten years of experience with BCI’s
serology and DNA section. Violi has testified as a DNA expert on more than 90
occasions. In this case, she testified about the results of the DNA tests she
performed on the items in evidence.
{¶ 139} • Andrew Chappell testified about his formal education, his
training, and his eight years of experience in BCI’s firearms section. Chappell
has testified as a firearms expert in 56 Ohio cases, and he testified about firearms
and gunshot residue in this case.
{¶ 140} We conclude that no plain error occurred when the trial court
failed to qualify these four witnesses formally as experts at the outset of their
testimony. See State v. Powell, 132 Ohio St.2d 233, 2012-Ohio-2577, 971 N.E.2d
865, ¶ 145; Hartman, 93 Ohio St.3d at 285-288, 754 N.E.2d 1150; Baston, 85
Ohio St.3d at 422-423, 709 N.E.2d 128.
{¶ 141} Thompson also argues that the trial court should have excluded
this testimony because it does not pass the Evid.R. 403 balancing test. He
generally asserts that a risk of unfair prejudice arose because the prosecutor and
the trial court held these four witnesses out as experts; however, he makes no
specific claims of prejudice. Further, he makes no effort to weigh the risk of
prejudice against the probative value of this testimony. As a result, Thompson
has not established any error in this regard.
{¶ 142} In sum, we discern no error in the admission of the challenged
expert testimony. We also reject Thompson’s argument that testimony from these
five witnesses violated his due-process rights because it did not pass scientific
muster under Evid.R. 702. Proposition of law No. IX fails.
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F. Statements about the Mitigation Phase
{¶ 143} In proposition of law No. VIII, Thompson argues that the trial
court violated his due-process rights by telling jurors conclusively that there
would be a second phase of the trial. He claims that the “judge conveyed that
Thompson’s guilt was a foregone conclusion” and “infringed upon his
presumption of innocence.” See Fourteenth Amendment to the U.S. Constitution;
R.C. 2901.05(A). Thompson did not raise this objection at trial, so we review this
proposition for plain error.
1. The Trial Judge’s Statements
{¶ 144} The trial judge initially described Ohio’s bifurcated process for
capital trials to the jurors during voir dire. The judge explained that if Thompson
were convicted of the charges against him, he “could be sentenced to death or to
other options of life imprisonment.” In light of the “possibility * * * that the
death penalty could be, under certain circumstances, imposed,” the judge advised
that she and counsel would inquire about the prospective jurors’ views on the
death penalty.
{¶ 145} Before questioning began, the judge emphasized that these voir
dire inquiries about capital punishment in no way “impl[ied] that the defendant is
guilty of the crime that is charged” or “presuppose[d] that a finding of guilt
should be made in this case.” The judge explained, “If there is a conviction by the
State proving that the defendant committed these crimes beyond a reasonable
doubt, then there is a possibility that there will be a separate hearing, which we
will call a sentencing hearing, where the jury will be called upon to make a
determination regarding the sentencing.” (Emphasis added.)
{¶ 146} With regard to scheduling, the trial judge informed the
prospective jurors that the trial phase would begin the following week, and then
said, “[I]f there’s a sentencing phase, [it] will begin on June 10th.” (Emphasis
added.) Midway through the trial phase, someone apparently inquired about
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January Term, 2014
whether the same schedule applied to alternate jurors. In response, the trial judge
stated:
Alternates, at this point, I think the question was raised,
you are on the same schedule as these jurors for sequestration.
You will remain jurors until they go to deliberate for a verdict.
If we get to the second phase, you remain as a juror. And
I’m glad that everyone is back, but we have a three-day weekend,
and God forbid anything happens, but we will need you. And there
will be a break then between this phase and the next phase. And
you will remain part of the jury until we finish the second phase of
the—get to that second phase.
Thompson did not object.
2. Analysis
{¶ 147} “Ohio bifurcates capital trials into guilt and penalty phases.” R.C.
2929.03(D); R.C. 2929.04(B) and (C). The jury initially determines a defendant’s
guilt. If the jury convicts the defendant of aggravated murder and at least one
death specification, then the trial proceeds to the second phase. Otherwise, the
second phase never occurs.
{¶ 148} In light of this bifurcated system, if a trial judge unequivocally
tells a capital jury that there will be a second phase of the trial, the judge violates
due process by communicating a belief in the defendant’s guilt and undermining
the presumption of innocence. State v. Williams, 73 Ohio St.3d 153, 169, 652
N.E.2d 721 (1995); see R.C. 2901.05(A); The judge does not violate due process
by speaking “generally of there being a possibility that the jury would have to
return for a second phase depending on the verdict.” (Emphasis deleted.) Id.39
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{¶ 149} Thompson argues that the judge’s language here was conclusive,
not equivocal. We disagree. Considered in context, the judge’s statements that
“there will be a break then between this phase and the next phase” and “you will
remain part of the jury until we finish the second phase of the—get to that second
phase” did not imply Thompson’s guilt to the jury. In the sentence immediately
preceding these statements, the court stated: “If we get to the second phase, you
remain as a juror.” (Emphasis added.) By using the word “if,” the judge clearly
indicated that the trial may or may not reach the second phase; she “never spoke
in definitive terms” regarding a second phase. Williams at 169. Moreover, as in
Williams, the trial judge made the challenged statements about the second phase
of trial in the context of explaining the schedule.
{¶ 150} Even early on, the judge also repeatedly emphasized that the
second phase was only a possibility, not a certainty. She took pains to
communicate that all discussions of capital punishment and the possibility of a
second phase were not intended to convey anything about Thompson’s guilt. And
at the conclusion of the trial phase, the judge admonished the jurors, “If, during
the course of the trial, I have said or done anything which you consider to be an
indication of my view on these subjects, you are instructed to disregard it.” We
presume that the jury followed the judge’s instruction. See Pang v. Minch, 53
Ohio St.3d 186, 195, 559 N.E.2d 1313 (1990).
{¶ 151} Accordingly, we conclude that the trial judge did not violate due
process by implying Thompson’s guilt, and we reject proposition of law No. VIII.
G. Voluntary-Manslaughter Instruction
{¶ 152} In proposition of law No. XII, Thompson contends that the trial
court erred by denying his request for a jury instruction on voluntary
manslaughter. According to Thompson, the court’s refusal to give this instruction
violated his Eighth and Fourteenth Amendment rights. See Beck v. Alabama, 447
U.S. 625, 643-644, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). We review a trial
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January Term, 2014
judge’s decision not to give a jury instruction for an abuse of discretion. See State
v. Wolons, 44 Ohio St.3d 64, 68, 541 N.E.2d 443 (1989).
{¶ 153} R.C. 2903.03 defines the crime of voluntary manslaughter as
follows:
(A) No person, while under the influence of sudden passion
or in a sudden fit of rage, either of which is brought on by serious
provocation occasioned by the victim that is reasonably sufficient
to incite the person into using deadly force, shall knowingly cause
the death of another * * *.
The test for voluntary manslaughter includes both an objective and a subjective
component. First—the objective factor—a fact-finder must determine whether a
serious provocation occurred and whether that provocation was “sufficient to
arouse the passions of an ordinary person beyond the power of his or her control.”
State v. Shane, 63 Ohio St.3d 630, 635, 590 N.E.2d 272 (1992). Second—the
subjective factor—the fact-finder must evaluate whether “this actor, in this
particular case, actually was under the influence of sudden passion or in a sudden
fit of rage.” Id. at 634. A defendant being tried for murder must prove the
elements of R.C. 2903.03(A) by a preponderance of the evidence. State v.
Rhodes, 63 Ohio St.3d 613, 620, 590 N.E.2d 261 (1992).
{¶ 154} Thompson cites evidence that he says was sufficient to compel a
voluntary-manslaughter instruction here. First, he quotes at length from his own
unsworn statement. But Thompson did not give his statement until the mitigation
phase. This information has no bearing on whether the trial court should have
given an instruction at the trial phase of Thompson’s trial. See State v. Braden,
98 Ohio St.3d 354, 2003-Ohio-1325, 785 N.E.2d 439, ¶ 71.
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{¶ 155} Second, Thompson invokes the testimony of the sole defense
witness, Roberson, who testified that Miktarian was being “rude” and
“unprofessional.” According to Roberson, he “kind of slammed [Thompson]
down on the hood” of the police car and threatened to “let [his] dog out on
[Thompson’s] ass.” At some point, Thompson ended up on the ground.
Roberson said that she “feared for [Thompson’s] life” and that Thompson later
told her that he had shot Miktarian because Miktarian “was trying to hurt him.”
{¶ 156} Finally, Thompson cites a variety of other evidence from the
state’s case-in-chief to support Roberson’s account. Witnesses testified that
Miktarian had removed his Taser from his duty belt (though he had not used it)
and that his DNA (though not his blood) was found on the handle and trigger of
Thompson’s gun. Detective Kline testified that Miktarian’s dog was acting very
aggressively when police arrived at the scene, so aggressively, in fact, that the
officers did not immediately let him out of the cruiser. And Luther Norman, who
instructed Thompson on Ohio’s concealed-carry law, testified that he teaches
students that they each have to make a personal decision about when there is a
serious enough possibility of death or serious bodily harm to justify discharging a
weapon.
{¶ 157} The trial court acted within its discretion by declining to give a
voluntary-manslaughter instruction on the basis of this evidence. Almost all the
evidence cited by Thompson speaks to his fear that Miktarian would harm him.
As we have held, “[f]ear alone is insufficient to demonstrate the kind of emotional
state necessary to constitute sudden passion or fit of rage.” State v. Mack, 82
Ohio St.3d 198, 201, 694 N.E.2d 1328 (1998); see also State v. Harris, 129 Ohio
App.3d 527, 535, 718 N.E.2d 488 (10th Dist.1998) (“evidence * * * that the
defendant feared for his own and other’s personal safety, does not constitute
sudden passion or a fit of rage as contemplated by the voluntary manslaughter
statute”).
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{¶ 158} Roberson’s testimony that Miktarian was being “rude” and
“unprofessional” likewise is not sufficient to establish a sudden passion or a fit of
rage. This court has held that “words alone will not constitute reasonably
sufficient provocation to incite the use of deadly force in most situations.” Mack
at 201, citing Shane, 63 Ohio St.3d 630, 590 N.E.2d 272, at paragraph two of the
syllabus. Here, the trial court reasonably concluded that Miktarian’s reported
“rudeness” would not arouse the passions of an ordinary person beyond the power
of his control, even when coupled with evidence of fear. See Shane at 635.
{¶ 159} Moreover, nothing in the record indicates that Thompson actually
was in a fit of passion or rage on the night in question. Roberson, Thompson’s
only witness, described the shooting and then simply testified that Thompson told
her to get back in the car so the two could drive to Thompson’s sister’s house.
Her testimony provides no insight into Thompson’s actual state of mind or level
of agitation at the time of the shooting. Under these circumstances, the court did
not err by refusing to give a voluntary-manslaughter instruction.
{¶ 160} We therefore reject proposition of law No. XII.
H. Prosecutorial Misconduct
{¶ 161} In proposition of law No. XI, Thompson claims that prosecutorial
misconduct occurred throughout the proceedings, thereby depriving him of due
process and a fair trial. See Sixth and Fourteenth Amendments to the U.S.
Constitution; Ohio Constitution, Article I, Sections 10 and 16.
{¶ 162} To evaluate allegations of prosecutorial misconduct, we “must
determine (1) whether the prosecutor’s conduct was improper and (2) if so,
whether it prejudicially affected [the defendant’s] substantial rights.” State v.
LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 121. Because
prosecutorial misconduct implicates due-process concerns, “[t]he touchstone of
the analysis ‘is the fairness of the trial, not the culpability of the prosecutor.’ ”
State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948, ¶ 200,
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quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78(1982). We “will not deem a trial unfair if, in the context of the entire trial, it
appears clear beyond a reasonable doubt that the jury would have found the
defendant guilty even” absent the misconduct. LaMar at ¶ 121.
1. Voir Dire
{¶ 163} Thompson argues that the prosecutor engaged in misconduct by
repeatedly giving prospective jurors an improper and misleading definition of the
term “mitigating factors” during voir dire. Specifically, he objects to statements
made by the prosecutor during the individual voir dire of prospective juror Nos. 7
and 16. Thompson did not object to either statement at trial, so we review his
claim of prosecutorial misconduct for plain error only. State v. Franklin, 97 Ohio
St.3d 1, 2002-Ohio-5304, 776 N.E.2d 26, ¶ 24. And because neither prospective
juror was seated as a juror or an alternate, Thompson cannot establish plain error
on this basis.
2. Improper Questions
{¶ 164} Thompson next claims misconduct occurred when the prosecutor
asked witnesses leading and improper questions and elicited speculative
testimony and hearsay.
a. Leading Questions
{¶ 165} Thompson says the prosecutor asked leading questions during the
testimony of John Jira, Christine Franco, and eight other witnesses. Thompson
did not object to most of these questions at trial. Accordingly, we review these
claims for plain error, unless otherwise noted.
{¶ 166} “A leading question is ‘one that suggests to the witness the answer
desired by the examiner.’ ” State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-
5084, 854 N.E.2d 1038, ¶ 138, quoting 1 McCormick, Evidence, Section 6, at 19
(5th Ed.1999). Generally, this type of question “should not be used on the direct
examination of a witness except as may be necessary to develop the witness
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testimony.” Evid.R. 611(C). Still, the trial court has discretion to allow leading
questions on direct examination. D’Ambrosio, 67 Ohio St.3d at 190, 616 N.E.2d
909; see Staff Note to Evid.R. 611(C).
{¶ 167} First, Thompson claims that the prosecutor improperly led
bartender John Jira while questioning him about Thompson’s behavior on July 13.
During his testimony, Jira confirmed that he was aware that a witness (Bartz) had
overheard Thompson making statements in the bar that night. The prosecutor
then asked, “You didn’t hear him make those statements, did you?” Jira
responded, “Not at all.”
{¶ 168} Although the prosecutor’s question was leading, the trial court
had discretion to permit it. And even if the question had been improper, it was to
Thompson’s benefit. This question and answer showed that Jira was unable to
corroborate Bartz’s testimony about Thompson’s behavior that night.
Accordingly, we find no misconduct or plain error with regard to Jira’s testimony.
{¶ 169} Second, Thompson objects to the prosecutor’s redirect
examination of police dispatcher Christine Franco. On cross-examination, Franco
had testified that she did not receive a “distress code” from Miktarian on the night
of his murder. She explained, “We don’t usually use codes,” and she agreed with
defense counsel that an officer in trouble would normally say something like “I’m
in trouble, or, I need help.”
{¶ 170} On redirect, the prosecution asked leading questions in an attempt
to establish that Miktarian may have been communicating distress when he
requested another unit. After a sidebar, the trial court sustained an objection to
the questioning, reasoning that the prosecutor was making “an argument” about
Miktarian’s meaning. The prosecutor attempted to rephrase the question, but the
court sustained a second objection. At this point, the prosecutor inartfully asked
Franco whether she had known Miktarian’s reasons for requesting backup when
she testified on cross-examination that Miktarian had not called in distress: “So
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when you answered [defense counsel’s] question, you didn’t know that either?”
Franco agreed that she had not known Miktarian’s reasons.
{¶ 171} The trial court sustained objections to the first two questions cited
by Thompson, so they cannot be the basis for a misconduct claim. See Hale, 119
Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, at ¶ 162. And Thompson did
not object at trial to the state’s final question and cannot establish plain error.
Indeed, he does not even attempt to show that the outcome of his trial would have
differed if Franco had definitively testified that Miktarian was not in distress
when he called for backup. See Crim.R. 52(B).
{¶ 172} Finally, Thompson generally claims that the prosecutor
committed misconduct by “us[ing] leading questions with many witnesses.” He
cites eight witnesses and corresponding transcript pages but offers no further
argument in support of this claim. Many of Thompson’s citations refer to
instances in which the trial court sustained objections to a question, which cannot
be the basis for a misconduct claim. In addition, some of the cited questions
merely restated a witness’s prior testimony, so they cannot be deemed prejudicial.
{¶ 173} What remains of Thompson’s broad claim are leading questions
about whether certain behavior is unusual in a bar, whether Miktarian’s dashboard
camera was recording, whether a Taser is deadly force, whether Thompson
resisted arrest at his sister’s home, the significance (or lack thereof) of finding no
forensic evidence in a case, and a BCI analyst’s past experiences swabbing guns
for blood. Only one of these matters is potentially prejudicial—whether a Taser is
deadly force. But Thompson did not argue self-defense, and he cannot rely on
fear to prove manslaughter. Accordingly, even that testimony was not prejudicial,
let alone outcome-determinative. We therefore reject all of Thompson’s claims
related to the use of leading questions.
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b. Eliciting Hearsay
{¶ 174} Next, Thompson argues that the prosecution committed
misconduct by eliciting hearsay testimony from Steven Bartz, thereby violating
Thompson’s confrontation rights. Because Thompson did not object to this
evidence at trial, he has waived all but plain error. See Jones, 91 Ohio St.3d at
343, 744 N.E.2d 1163.
{¶ 175} Bartz relied on his written police statement when testifying, both
on direct and on cross-examination. The record indicates that Bartz did read some
portions of his statement aloud to the jury. But this admission of hearsay did not
violate Thompson’s confrontation rights, because the declarant (Bartz) testified at
trial. See Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, at ¶ 64;
Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, at ¶ 110.
Moreover, this evidentiary mistake did not rise to the level of plain error.
c. Eliciting Inflammatory Testimony
{¶ 176} Thompson also says that the prosecutor committed misconduct by
posing inflammatory questions to Sergeant Sandoval and Danielle Roberson. On
redirect, the prosecutor asked Sandoval, “Sir, how many seconds does it take to
reach for a gun and shoot and kill a police officer?” And on cross-examination of
Roberson, the prosecutor asked, “That officer had every reason in the world to be
nervous, didn’t he?” In both instances, the trial court sustained defense objections
and instructed the jury to “[d]isregard the question.”
{¶ 177} Thompson “cannot predicate error on objections the trial court
sustained.” Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, at
¶ 162. Accordingly, we reject these claims.
3. Irrelevant and Prejudicial Evidence
{¶ 178} Thompson next alleges misconduct based on the introduction of
two sets of photographs into evidence: photos of a broken liquor bottle found at
the scene, and photos of Miktarian and Bagio that show Miktarian wearing an
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“Officer of the Year” pin. According to Thompson, the former were admitted
only to encourage the jury to draw an improper inference and the latter were
admitted only to evoke sympathy.
{¶ 179} The state introduced the first set of photos during the testimony of
Gina McFarren, a retired sergeant in the Summit County Sheriff’s Office.
McFarren collected evidence at the Glenwood crime scene on July 13, 2008. At
trial, she identified three photos of a broken liquor bottle that was found near the
scene. The defense did not object.
{¶ 180} Thompson cannot show that plain error occurred when the
prosecutor offered, and the trial court admitted, these photos. Evid.R. 402
generally establishes that all relevant evidence is admissible. These photos are
relevant because they “helped explain the testimony of police officers who * * *
processed the crime scene.” Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, 836
N.E.2d 1173, at ¶ 85; see Evid.R. 401.
{¶ 181} Moreover, the probative value of this evidence was not
“substantially outweighed by the danger of unfair prejudice.” Evid.R. 403(A).
Thompson says these photos allowed the jury to improperly infer that the bottle
was his, even though no other evidence supported that inference. But the trial
judge reasonably permitted the jury to draw its own conclusions about the bottle’s
presence at the scene. And defense counsel did make a case that the bottle was
not Thompson’s. On cross-examination, McFarren admitted that the bottle was
next to the sidewalk, that she had no way of knowing who put it there or when,
that Thompson’s home is near a busy intersection, and that someone driving by
could have thrown the bottle from a vehicle. Accordingly, Thompson cannot
establish either that the prosecutor acted improperly by introducing these photos
or that he was unfairly prejudiced by their admission.
{¶ 182} The state introduced photographs of Miktarian and Bagio during
the direct examination of its first witness, Twinsburg Police Chief Christopher
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Noga. The defense did not object, but now argues that these photos lacked
probative value because they “had no basis other than to invoke sympathy in the
jurors.” This court has previously held that “[p]re-death photographs are relevant
and admissible for purposes of identifying the victim[].” LaMar, 95 Ohio St.3d
181, 2002-Ohio-2128, 767 N.E.2d 166, at ¶ 57. Accordingly, plain error did not
occur when these photos were offered and admitted into evidence.
4. Improper Character and Other-Acts Evidence
{¶ 183} Thompson claims that the state improperly introduced a recorded
telephone conversation between Thompson and his girlfriend, Roberson, under
the guise of rebutting Roberson’s testimony.
{¶ 184} On cross-examination of Roberson, the prosecutor inquired about
a phone conversation she had had with Thompson. Roberson agreed that
Thompson had called her at some point after his arrest. The prosecutor then
asked, “And he told you that he wasn’t himself that day?” Roberson replied, “I
don’t recall that.” The prosecutor asked whether Roberson recalled a series of
statements that Thompson made during that conversation. Each time, Roberson
responded, “I don’t recall that.” Ultimately, she explained, “I don’t recall a lot of
phone conversations because they were so long ago. It’s been two years.”
{¶ 185} After the defense rested, the prosecution recalled Detective Kline
as a rebuttal witness. Kline testified that he had listened to recordings of jailhouse
phone conversations between Thompson and Roberson, including their May 3,
2009 conversation about the events of July 13, 2008. The state played a recording
of that conversation for the jury. On the recording, Thompson told Roberson that
he had been “pissed off” because she “came out of the house half dressed and [he]
had [his] friend in the car.” He explained, “I had just got back from out of town.
I was tired. And when I told you to get dressed and later when I got there you
weren’t dressed, and it just—it just pissed me off.” Thompson then noted, “But it
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wasn’t just all of that. * * * It was just everything, man. I had enough, man. I
had enough with life, man, you know.”
{¶ 186} Thompson claims that this was improper character and other-acts
evidence under Evid.R. 404, because it was offered to persuade the jury that
“Thompson was a bad person and acted in conformity therewith on the night in
question.” Evid.R. 404(A) generally prohibits the admission of “[e]vidence of a
person’s character or a trait of character * * * for the purpose of proving action in
conformity therewith on a particular occasion.” Likewise, “[e]vidence of other
crimes, wrongs, or acts is not admissible to prove the character of a person in
order to show action in conformity therewith.” Evid.R. 404(B). Thompson did
not object to this evidence at trial, so his claim is reviewable only for plain error.
See State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, 837 N.E.2d 315,
¶ 270.
{¶ 187} The May 2009 recording did not violate Evid.R. 404, because it
was not offered to prove Thompson’s general character or action in conformity
with that character. Instead, this evidence was relevant to establishing
Thompson’s mindset on the night he killed Miktarian. During her testimony,
Roberson provided the foundation for the defense’s theory that Thompson acted
in response to Miktarian’s conduct that night. Indeed, the defense argued at
closing that Thompson acted out of “self-preservation” and “instinct.” The state
offered this recording to undermine that defense theory and to corroborate Bartz’s
testimony that Thompson was agitated hours before he encountered Miktarian.
{¶ 188} This recording was relevant to establish Thompson’s mental state
and thus his purpose in killing Miktarian. It was not improper character or other-
acts evidence.
5. Trial-Phase Closing Argument
{¶ 189} Thompson next contends that the prosecutor committed
misconduct during trial-phase closing arguments by making several “wholly
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improper” statements that “violated Thompson’s rights to due process, a fair trial,
and his right to remain silent.”
{¶ 190} First, Thompson says that the state improperly shifted the burden
of proof to the defense. During the state’s rebuttal closing, Prosecutor Brian
LoPrinzi recounted his efforts to anticipate what Thompson’s defense would be:
So I started going through all the defenses and I thought,
okay, what types of defenses do we have?
We have insanity. They’re not pleading insanity. * * * It
is not an issue.
What other defenses are there? It wasn’t me. You got the
wrong guy.
Well, we know that’s not on the table because they’ve
gotten up and told you it was him, not to mention we have DNA.
We have all kinds of evidence contrary to that.
State failed to prove its burden?
Ladies and Gentlemen, that’s not the defense. The Defense
basically has told you that he did this. They’ve told you that.
That’s not a defense.
Mr. O’Brien [defense counsel] has now discussed a little bit
with you about using that gun in self-defense. * * * It is not an
issue. You cannot consider self-defense.
***
So what is their defense?
You just heard from Mr. O’Brien their defense. It was
subtle, but it was pervasive. The officer was rude.
So after two weeks of being here, two and a half weeks of
being here, putting on mounds and mounds and mounds of
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evidence, scientific evidence, eyewitnesses, audio witnesses,
overwhelming evidence, we are here now talking about the bedside
manner of Officer Miktarian. It’s absurd. It is absurd.
Thompson did not object.
{¶ 191} It is “improper for the prosecutor to suggest that the defendant had
the burden of proof or any obligation to produce evidence to prove his
innocence.” United States v. Clark, 982 F.2d 965, 968-969 (6th Cir.1993).
Thompson claims that the prosecutor’s statements here may have somehow
implied that Thompson needed to provide a defense.
{¶ 192} Even assuming the prosecutor’s statements were improper, they
did not prejudicially affect Thompson’s substantial rights. In its first closing
statement, the prosecution clearly stated that the state bore the burden of proving
guilt beyond a reasonable doubt, then argued that Thompson had “no legal or
justifiable excuse for his crimes.” More important, the trial judge instructed the
jury that “[t]he defendant is presumed innocent until his guilt is established
beyond a reasonable doubt. The defendant must be acquitted unless the State
produces evidence which convinces you beyond a reasonable doubt of every
essential element of each of the offenses charged in the indictment.” We presume
that the jury followed the court’s instructions. State v. Loza, 71 Ohio St.3d 61,
79, 641 N.E.2d 1082 (1994). Therefore, the challenged statements did not
amount to plain error.
{¶ 193} Second, Thompson says that the prosecution improperly
denigrated the defense in three ways: (1) by describing the defense theory as
“absurd,” (2) by suggesting that the defense wanted to take Bartz’s testimony
away “because it’s very offensive,” and (3) by asking, “How much more do you
think the Defense is willing to deceive you to find out—find the defendant not
guilty.” The first and second statements do not merit concern. Although the term
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“absurd” is extreme, there is nothing improper about arguing that the defense
theory is not well-founded. Nor was it improper to suggest that the defense would
have preferred if certain evidence had not been introduced at trial.
{¶ 194} The prosecution’s third statement, however, is more troubling.
We have held that the state may not “unfairly suggest[] that the defense’s case
was untruthful and not honestly presented.” LaMar, 95 Ohio St.3d 181, 2002-
Ohio-2128, 767 N.E.2d 166, at ¶ 167. Here, the prosecutor implied that because
Thompson lied to Miktarian about whether he had consumed alcohol on July 13,
2008, the jury should question whether the defense was lying to secure an
acquittal. This was improper. Even so, Thompson did not object to the statement
at trial, and he cannot show that but for this comment the outcome of his trial
would have been different. Therefore, he cannot establish error on this basis.
{¶ 195} Third, Thompson objects to the prosecutor’s commentary about
Count 8 of the indictment, tampering with evidence. The prosecutor commented
that if Miktarian’s handcuffs had not been engraved by Miktarian, Thompson
would probably claim they belonged to him. This comment was improper. It
does not amount to plain error, however, because “it appears clear beyond a
reasonable doubt that the jury would have found the defendant guilty [of this
count] even without the improper comment[].” LaMar at ¶ 121.
{¶ 196} Fourth, Thompson claims that the prosecutor improperly
expressed his opinion about Danielle Roberson’s credibility. The prosecutor
observed that Roberson had offered conflicting accounts of what happened after
Thompson fled the scene. He then commented: “Danielle told you quite a few
things. And you have to feel bad for whatever motivations this defendant may
have put upon her to come in here and not tell you everything that happened.”
The trial court overruled a defense objection. A few moments later, the
prosecutor commented, “Abraham Lincoln once said that even the greatest of liars
tells 100 truths to one lie, because otherwise, they’d have no credibility at all.
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And Danielle, she twisted some things, but * * * at times, even in those lies, the
truth comes out.” Finally, he argued that Roberson was willing to testify for
Thompson “and change her account of what happened.”
{¶ 197} As a general matter, “[i]t is improper for an attorney to express his
or her personal belief or opinion as to the credibility of a witness.” State v.
Williams, 79 Ohio St.3d 1, 12, 679 N.E.2d 646 (1997). Here, the prosecutor did
not merely suggest that gaps in Roberson’s own testimony—or inconsistencies
with her prior statements—indicated that she was not telling the whole story. He
also suggested that Thompson had pressured Roberson to lie. No evidence on the
record supported this claim, and it was improper for the prosecutor to make this
comment.
{¶ 198} But Thompson cannot establish that this error prejudiced his
substantial rights. The prosecutor improperly commented on Roberson’s account
of what happened at Thompson’s sister’s house, after Thompson had already
killed Miktarian and fled the crime scene. The improper comment was not plain
error, because “it appears clear beyond a reasonable doubt that the jury would
have found the defendant guilty even without the improper comments.” LaMar,
95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, at ¶ 121.
{¶ 199} Fifth, Thompson says that the prosecutor improperly vouched for
two state witnesses. Namely, the prosecutor stated that “there’s no evidence to
suggest that Mr. Bartz had any motive to lie” and that BCI analyst John Saraya’s
testimony was “based on the physical evidence,” which “doesn’t have a stake in
the outcome of this case.”
{¶ 200} “Vouching occurs when the prosecutor implies knowledge of
facts outside the record or places his or her personal credibility in issue.” Davis,
116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, at ¶ 232. Here, the prosecutor
did no such thing. The prosecutor’s first comment merely argued that no
evidence on the record undermined Bartz’s truthfulness. The second argued that
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Saraya’s testimony was trustworthy because it turned on his analysis of physical
evidence, which speaks for itself. Accordingly, these comments were not
improper.
{¶ 201} Finally, Thompson says that the prosecutor argued evidence of
character or bad acts to encourage the jury to draw negative inferences about him.
The prosecutor described the recorded phone conversation between Thompson
and Roberson as “a phone call of the true Ashford Thompson.” He then argued:
[Y]ou can hear the anger in his voice that is still there from July
the year before. The night he killed a police officer, he’s saying,
let’s talk about how you were dressed.
That was the real Ashford Thompson, the man at 2454
Glenwood on July 13th of 2008, not the man put in a suit here in
front of you for the past two weeks who makes his smiles and rolls
his eyes.
The anger of Ashford Thompson is apparent in that May
2009 phone call. The blame that he gives others is apparent in that
2009 phone call. That is the real Ashford Thompson. That is the
Ashford Thompson that Officer Joshua Miktarian encountered that
morning. That is the man that the piece of the puzzle comes from
that Steven Bartz heard say there is demons in me. I will kill any
MF’r that threatens me. Nobody understands the s* * * I’ve been
through and I’m capable of. That is the man we ask you to judge
here today. He is the same man you heard obsessing and
controlling Danielle in that phone call yesterday. * * *
That is the man that in cold blood gunned down and killed
Officer Joshua Miktarian, who was doing his duty to serve us.
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{¶ 202} We have “previously held that the prosecution is entitled to a
certain degree of latitude in summation.” Treesh, 90 Ohio St.3d at 466, 739
N.E.2d 749. Here, the prosecutor claimed that the phone recording revealed “the
real Ashford Thompson.” He argued that Thompson’s voice and words reflected
anger and said that that anger was consistent with Bartz’s description of
Thompson’s behavior at Rav’s Bar the night of the murder. He also argued that
Thompson essentially blamed Roberson for his mood that night. These are fair
arguments based on the evidence at trial. By contrast, the prosecutor’s comment
that Thompson is “obsessing and controlling” improperly encouraged the jury to
draw negative inferences about Thompson’s character. Even so, this comment
did not amount to plain error.
{¶ 203} Ultimately, we must review the prosecutor’s “closing argument in
its entirety to determine whether prejudicial error occurred.” Treesh at 468.
Here, although the prosecutor made some improper statements during closing
arguments, these statements “did not permeate the state’s argument” so as to deny
Thompson a fair trial. Id. And even if these comments had been prejudicial, we
could cure that error during our independent sentence evaluation. See, e.g.,
Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d 433, at ¶ 227.
Accordingly, we reject Thompson’s claims that plain error occurred during trial-
phase closing arguments.
6. Mitigation-Phase Closing Argument
{¶ 204} Finally, Thompson argues that the prosecutor committed
misconduct by appealing to the jury’s sympathy and emotions during mitigation-
phase closing arguments.
{¶ 205} During closing argument, the prosecutor discussed the
aggravating circumstance of killing a law-enforcement officer. He emphasized
that “this case is not about Officer Miktarian” but about “what he represented.”
He discussed how the mitigation hearing had honored Thompson “by letting his
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whole family, friends, people that he worked for, come and say wonderful things
about him.” Then he told the jury, “now it’s time to stop honoring the Defendant
and start honoring the law.” The prosecutor asked the jury to “do an honest
weighing of the aggravating circumstances against the mitigating factors.” He
advised, “[Y]ou now have to decide the weight. Are you going to honor Mr.
Thompson, or are you going to honor the law, that badge? Which do you give
more weight?”
{¶ 206} The prosecutor’s statements were not improper. The prosecutor
correctly explained the process of weighing aggravating circumstances and
mitigating factors to the jury. As to the aggravating circumstance at issue here—
killing a law-enforcement officer—the prosecutor advised the jury to consider the
victim’s “badge” and his role as a representative of “the law.” By contrast, the
prosecutor referred to all of Thompson’s mitigation evidence during the
mitigation phase as evidence “honor[ing] him.” Thus, when the prosecutor asked
the jury to decide whether to honor “Mr. Thompson” or “the law,” he essentially
asked for nothing more than the weighing required by R.C. 2929.04.
{¶ 207} Further, even if the prosecutor’s comment had somehow misled
the jury about the nature of the weighing process, Thompson cannot establish
prejudice. The judge properly instructed the jury, and we presume that the jury
followed those instructions. Loza, 71 Ohio St.3d at 79, 641 N.E.2d 1082.
Accordingly, Thompson’s claim of misconduct during the mitigation-phase
closing argument fails.
7. Cumulative Misconduct
{¶ 208} Thompson urges this court to aggregate all of the alleged
misconduct and determine whether, in its entirety, it “ ‘so infected the trial with
unfairness as to make the resulting conviction a denial of due process.’ ” Darden
v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986),
quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d
57SUPREME COURT OF OHIO
431 (1974). The above analysis indicates that the prosecutor engaged in some
questionable conduct at trial. Regardless, none of that conduct, viewed
individually or in the aggregate, deprived Thompson of a fair trial. LaMar, 95
Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, at ¶ 182.
{¶ 209} We reject proposition of law No. XI.
I. Trial Court Errors
{¶ 210} Thompson asserts in proposition of law No. X that a variety of
errors and omissions by the trial court violated his rights to due process and a fair
trial. Sixth and Fourteenth Amendments to the U.S. Constitution. As Thompson
notes, “the judge * * * has the ultimate responsibility for the conduct of a fair and
lawful trial.” Lakeside v. Oregon, 435 U.S. 333, 341-342, 98 S.Ct. 1091, 55
L.Ed.2d 319 (1978).
1. Voir Dire
{¶ 211} Thompson argues that the trial court erred by failing to correct
counsel’s definitions of mitigating circumstances at voir dire.
{¶ 212} Thompson’s claim turns on statements made during individual
voir dire. During voir dire of prospective juror No. 7, the prosecution described
mitigation as “any good that the defendant wants you to hear and consider,” and
the defense described it as “good things * * * about Mr. Thompson’s life.” The
state also described mitigation to prospective juror No. 16 as “factors that the
Defense can put on or may put on—and that could be anything that tends to lessen
the severity of the case or his culpability.”
{¶ 213} Thompson cannot prevail on this claim, because neither
prospective juror who heard these alleged misstatements was seated as a juror or
even as an alternate.
2. Batson
{¶ 214} Thompson also contends that the trial court improperly excluded
an African-American prospective juror in violation of Batson, 476 U.S. 79, 106
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S.Ct. 1712, 90 L.Ed.2d 69. We reject this claim for the reasons explained in our
analysis of Thompson’s second proposition of law.
3. Improper Questioning, Testimony, and Evidence
{¶ 215} Next, Thompson says that the trial court violated his rights to due
process and a fair trial by permitting the prosecution to commit the misconduct
alleged in proposition of law No. XI. Thompson says that the court should have
stopped the state from leading witnesses, eliciting hearsay testimony, introducing
improper and prejudicial evidence, and making improper and inflammatory
statements during closing statements. But as discussed above, the alleged
misconduct did not violate Thompson’s rights. Therefore, the trial court’s failure
to stop this conduct likewise did not deprive Thompson of due process or a fair
trial.
4. Inspection of Records
{¶ 216} Finally, Thompson argues that the trial court should have ensured
that he was present to review Miktarian’s personnel records.
{¶ 217} On February 25, 2010, the court granted a defense motion to
review Miktarian’s personnel file. On March 24, 2010, the prosecutor expressed
concern about confidential information in the file and explained, “I don’t [want]
the parts that are not relevant to be discussed or reviewed or released to the
defendant.” The judge ordered the prosecutor to produce the file and said that she
would set up a time to go through each page of it with the prosecutor and defense
counsel and would give defense counsel a copy of whatever she thought was
appropriate. Defense counsel suggested that the parties do a preliminary review
before meeting with the judge. The judge agreed, noting, “And Mr. Thompson
will not be present for discovery.” Moments later, the judge confirmed that
Thompson understood what was going on and did not have questions. The
defense raised no objections.
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{¶ 218} Defense counsel later received access to the entire unredacted file.
During the sentencing hearing, the prosecutor noted, “For the record, we gave Mr.
Thompson the officer’s records, completely unredacted. His attorneys had an
opportunity to look at them.” The record does not indicate whether Thompson
himself reviewed the materials.
{¶ 219} Thompson now claims that the trial court erred by not ensuring
his personal presence for the review of Miktarian’s file. A trial court must ensure
a defendant’s presence at critical stages of prosecution, see State v. Williams, 6
Ohio St.3d 281, 286-287, 452 N.E.2d 1323 (1983), but Thompson cites no
authority extending that obligation to the discovery context. In fact, in the few
cases in which defendants have claimed a right of access to all discovery
materials, “most courts have held that ‘[t]rial counsel’s decision whether to
provide [the defendant] with discovery materials constitutes a matter of trial
strategy and judgment that ultimately lies within counsel’s discretion.’ ” People
v. Krueger, 296 P.3d 294, 300 (Colo.Ct.App.2012) (cataloging cases to analyze
whether defendant’s lack of access to discovery materials created a conflict
between him and trial counsel), quoting People v. Davison, 686 N.E.2d 1231,
1236 (Ill.App.Ct.1997). “[A]llowing a defendant unfettered access to discovery
materials could create friction between the defendant and his attorney” and would
make him “more likely to question his attorney’s strategic decisions, with little or
no justification, thereby undermining the attorney-client relationship.” Krueger at
300. Thompson cannot establish error in this regard.
{¶ 220} In addition, the alleged error was not outcome-determinative:
Thompson’s counsel had access to Miktarian’s file, and they were able to assess
whether it included information helpful to Thompson’s defense.
{¶ 221} For the above reasons, we reject proposition of law No. X.
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J. Ineffective Assistance of Counsel
{¶ 222} In proposition of law Nos. XIII and XIV, Thompson argues that
counsel provided constitutionally ineffective assistance. See Sixth and Fourteenth
Amendments to the U.S. Constitution; Ohio Constitution, Article 1, Section 10.
{¶ 223} To establish ineffective assistance, a defendant must both (1)
show that counsel’s performance “fell below an objective standard of
reasonableness,” as determined by “prevailing professional norms,” Strickland v.
Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and (2)
demonstrate “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different,” id. at 694. When
performing a Strickland analysis, we “indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.” Id. at
689.
1. Pretrial and Trial Claims
a. Voir Dire
{¶ 224} Thompson argues that counsel provided deficient performance
during voir dire in several regards.
{¶ 225} When evaluating claims of ineffective assistance at voir dire, we
have “recognized that counsel is in the best position to determine whether any
potential juror should be questioned and to what extent.” State v. Murphy, 91
Ohio St.3d 516, 539, 747 N.E.2d 765 (2001); see State v. Mundt, 115 Ohio St.3d
22, 2007-Ohio-4836, 873 N.E.2d 828, ¶ 65 (in some cases, counsel may decide
the best tactic is to “ask[] few or no questions of a prospective juror”). In fact, “
‘[f]ew decisions at trial are as subjective or prone to individual attorney strategy
as juror voir dire, where decisions are often made on the basis of intangible
factors.’ ” Mundt at ¶ 64, quoting Miller v. Francis, 269 F.3d 609, 620 (6th
Cir.2001). We “consistently decline[] to ‘second-guess trial strategy decisions’ or
impose ‘hindsight views about how current counsel might have voir dired the jury
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differently.’ ” Mundt at ¶ 63, quoting State v. Mason, 82 Ohio St.3d 144, 157,
694 N.E.2d 932 (1998).
{¶ 226} First, Thompson critiques trial counsel’s performance with regard
to the trial court’s dismissal of six prospective jurors for cause, based on their
reticence about imposing the death penalty. During voir dire, prospective juror
Nos. 11 and 66 said that they did not believe that they could impose a death
sentence. Prospective juror Nos. 48 and 69 said there was little chance they could
sign a verdict imposing a death sentence. Prospective juror No. 102 said she
could not set aside her objections to the death penalty. And prospective juror No.
95 said he was morally opposed to the death penalty due to his convictions as a
Seventh-Day Adventist.
{¶ 227} Thompson says defense counsel should have either objected to the
dismissal of all six of those prospective jurors or attempted to rehabilitate them.
But “fail[ing] to rehabilitate jurors does not render trial counsel ineffective.”
State v. Lindsey, 87 Ohio St.3d 479, 489, 721 N.E.2d 995 (2000). Trial “counsel
[are] in the best position to determine whether the jurors could be rehabilitated,”
Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, at ¶ 58, because they
have witnessed each prospective juror’s “demeanor and statements,” Lindsey at
489. We are not in a “position to second-guess counsel on this point.” Hale, 119
Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, at ¶ 213.
{¶ 228} In addition, Thompson cannot establish that he was prejudiced by
any alleged error. There is no way to “know whether these jurors could have been
rehabilitated.” (Emphasis sic.) Id. Nor is there any “evidence in the record that
the seated jurors were unable to follow their oaths and to make a recommendation
of death only when permitted by law and warranted by the facts.” Lindsey at 490.
{¶ 229} Second, Thompson argues that defense counsel should have asked
the trial court to life-qualify the prospective jurors or, at the very least, taken it
upon themselves to do so. In Morgan v. Illinois, 504 U.S. 719, 729-734, 112
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S.Ct. 2222, 119 L.Ed.2d 492 (1992), the United States Supreme Court held that
upon a defendant’s request, a trial court must life-qualify a jury. But “Morgan
does not mandate that life-qualifying questions be asked of potential jurors in
every case.” Stanford v. Parker, 266 F.3d 442, 454 (6th Cir.2001). See also
Thomas v. Horn, 570 F.3d 105, 122 (3d Cir.2009). Instead, it allows for the
possibility that in some instances “counsel might choose not to ask life-qualifying
questions as a matter of strategy.” Stanford at 454.
{¶ 230} Here, defense counsel ensured that the prospective jurors would
be willing to consider options other than a sentence of a death if Thompson were
convicted. Defense counsel (or, in a few instances, the prosecutor) discussed the
state’s burden of proof at sentencing with every prospective juror who was seated
as a juror or alternate and verified that each juror would take mitigating evidence
into account. And even if Thompson believes that his counsel should have
questioned the prospective jurors further on this point, we must presume that
counsel’s decision not to inquire further was a matter of trial strategy. See
Strickland, 466 U.S. at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674.
{¶ 231} Moreover, even if counsel had been deficient in life-qualifying
Thompson’s jurors, Thompson cannot establish prejudice. None of the seated
jurors indicated during voir dire that he or she would automatically impose death
if Thompson were convicted. See State v. Maxwell, 139 Ohio St.3d 12, 2014-
Ohio-1019, 9 N.E.3d 930, ¶ 86; State v. Myers, 97 Ohio St.3d 335, 2002-Ohio-
6658, 780 N.E.2d 186, ¶ 158.
{¶ 232} Third, Thompson says that trial counsel failed to question
prospective jurors adequately about race. Before voir dire began, defense counsel
asked the trial court to inquire whether the prospective jurors have had “any
problems with a member of the African-American race” that would prevent them
from being fair and impartial. During voir dire, the trial court asked this question
of every person who was ultimately seated on the jury, and none of their
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responses indicated racial bias. Thompson now objects that trial counsel should
have conducted further inquiry on the matter.
{¶ 233} When a capital defendant is accused of interracial murder, defense
counsel are “entitled to engage in racial-bias inquiry,” but they are not required to
do so. (Emphasis deleted.) Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892
N.E.2d 864, at ¶ 218. As this court has explained, “the actual decision to question
on racial prejudice is a choice best left to a capital defendant’s counsel.” State v.
Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 33. Counsel has
to “weigh the risks inherent in interrogating prospective jurors on the sensitive
question of racial prejudice.” State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-
6179, 920 N.E.2d 104, ¶ 207. We have rejected claims of deficient performance
even when trial counsel asked no questions about race in a case in which the
defendant was accused of an interracial murder. See, e.g., Sanders, 92 Ohio St.3d
at 274, 750 N.E.2d 90; State v. Smith, 89 Ohio St.3d 323, 327-328, 731 N.E.2d
645 (2000).
{¶ 234} Here, Thompson’s counsel did ask the trial court to inquire about
racial bias. Counsel heard and saw the prospective jurors’ responses to these
questions and was in the best position to determine whether additional inquiry
was needed. Thompson cannot show that counsel were deficient for not inquiring
further on the point. Moreover, he cannot establish prejudice, because there is no
evidence that any member of the jury actually harbored racial bias.
{¶ 235} Fourth, Thompson recasts his third proposition of law as an
ineffective-assistance claim, arguing that trial counsel should have requested
additional voir dire after learning that one prospective juror had overheard other
venire members discussing Thompson’s withdrawn guilty plea. As explained
above, the trial judge’s initial inquiries about publicity during individual voir dire,
coupled with her questions during group voir dire, were sufficient to “
‘reasonabl[y] assur[e] that prejudice would be discovered if present.’ ” Chagra,
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669 F.2d at 250, quoting Hawkins, 658 F.2d at 283. Accordingly, counsel were
not deficient for failing to request additional voir dire on this matter. In addition,
Thompson cannot establish prejudice, because no evidence indicates that any
seated juror knew about his withdrawn guilty plea.
{¶ 236} Finally, Thompson argues that counsel provided ineffective
assistance by incorrectly defining the term “mitigating factors” during voir dire.
As noted above, during individual voir dire of one prospective juror, trial counsel
described mitigating factors as “good things * * * about Mr. Thompson’s life”
and “any good that the defendant wants you to hear and consider.” But that
prospective juror was not seated as a juror, and this evidence hardly proves
Thompson’s sweeping claim that defense counsel “repeatedly described”
mitigating factors as “good things.” In any event, counsel does not perform
deficiently by relying on shorthand references to complex legal concepts during
voir dire. See Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, at
¶ 246.
{¶ 237} In addition, Thompson cannot show prejudice as a result of the
alleged error. “[S]horthand references to legal concepts during voir dire cannot
be equated to final instructions given shortly before the jury’s penalty
deliberations.” State v. Stallings, 89 Ohio St.3d 280, 285, 731 N.E.2d 159 (2000).
The trial court correctly instructed the jury about the definition of mitigating
factors before the mitigation phase began and again before the jury’s sentencing
deliberations. These mitigation-phase instructions cured any earlier
misstatements on this point during voir dire. See Lang at ¶ 246; State v. Ahmed,
103 Ohio St.3d 27, 2004-Ohio-4190, 813 N.E.2d 637, ¶ 147. Accordingly, trial
counsel did not provide constitutionally ineffective assistance of counsel in this
regard.
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b. Failure to Renew Motion for Change of Venue
{¶ 238} Thompson also argues that counsel provided ineffective assistance
by failing to renew his venue motion after voir dire. As explained above, the trial
court denied the motion after completing individual voir dire on pretrial publicity.
Thompson now argues that counsel should have renewed the motion later, at the
close of general voir dire.
{¶ 239} Trial counsel’s failure to renew the motion was not tantamount to
ineffective assistance. This court has rejected ineffective-assistance claims based
on venue in cases where “voir dire about pretrial publicity was adequate,” as here.
See Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, at ¶ 49; see also
State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 228-229.
Under those circumstances, a defendant’s counsel may “have reasonably decided
not to renew the motion for a change of venue after voir dire was completed.”
Diar at ¶ 229; see also Davis at ¶ 49.
{¶ 240} In addition, this failure was not prejudicial. “[A] change of venue
is not automatically granted when there is pretrial publicity. Any decision to
change venue rests largely within the discretion of the trial judge.” Diar at ¶ 229.
For the reasons explained in the analysis of proposition of law No. VI, the trial
court did not err by declining to order a change of venue. As a result, we hold
that counsel did not provide ineffective assistance in this regard.
c. Inadequate Trial Preparations
{¶ 241} Thompson next claims that trial counsel were constitutionally
inadequate because they failed to prepare for trial in several key ways.
{¶ 242} First, Thompson objects that counsel should have hired a
serologist and a DNA expert to evaluate the state’s evidence that Miktarian’s
DNA was present on Thompson’s gun. At trial, the state presented evidence that
a mixture of DNA profiles was present on the handle and trigger of the gun. BCI
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analyst Stacy Violi testified that the major profile on the swab taken of each
belonged to Miktarian, and the minor profile belonged to Thompson.
{¶ 243} On cross-examination, defense counsel asked Violi, “Well, how
does [Miktarian’s] DNA end up on Mr. Thompson’s gun?” Violi responded that
she did not know. She conceded that Miktarian’s DNA had come from some
bodily fluid other than blood and that it was possible that Miktarian had had his
hand on Thompson’s gun. But Violi was unwilling to say that “the most likely
scenario for that DNA transfer” was that Miktarian “had that gun” or “touched
that gun” at some point.
{¶ 244} Thompson says defense counsel should have hired an expert to
testify that “the presence of the officer’s DNA on the gun was indicative of a
struggle over the weapon.” The decision not to seek expert testimony is often
tactical “ ‘because such an expert might uncover evidence that further inculpates
the defendant.’ ” State v. Krzywkowski, 8th Dist. Cuyahoga Nos. 83599, 83842,
and 84056, 2004-Ohio-5966, ¶ 22, quoting State v. Glover, 12th Dist. Clermont
No. CA2001-12-102, 2002-Ohio-6392, ¶ 25. In addition, we have recognized that
ineffective assistance does not occur when counsel decides to rely on cross-
examination of the state’s expert rather than calling a separate defense expert.
State v. Nicholas, 66 Ohio St.3d 431, 436, 613 N.E.2d 225 (1993). Here,
Thompson’s counsel did just that, leading Violi to admit that Miktarian’s blood
was not on Thompson’s gun and that Miktarian may have placed his hand on the
gun. Accordingly, trial counsel’s decision not to hire a defense serologist and
DNA expert fell “within the wide range of reasonable professional assistance.”
Strickland, 466 U.S. at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674.
{¶ 245} In addition, Thompson cannot establish prejudice as a result of
this alleged deficiency. Violi’s testimony did not contradict Thompson’s theory
that a struggle occurred. And Thompson’s claim that another expert would have
assisted him is purely speculative. State v. Madrigal, 87 Ohio St.3d 378, 390, 721
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N.E.2d 52 (2000). It is unclear whether any expert would be able to say that
Miktarian’s bodily fluids were transferred to Thompson’s weapon in the process
of a struggle. Accordingly, trial counsel’s failure to hire a competing expert did
not deprive Thompson of a fair trial. Strickland at 687.
{¶ 246} Second, Thompson argues that counsel did not conduct an
adequate pretrial investigation because they did not hire a private investigator.
During a pretrial hearing on February 24, 2010, defense counsel stated, “Mr.
Thompson is requesting that we file a motion and have the Court sign an order
allowing him to get his own—the Court appoint an investigator for him, and
we’re suggesting specifically Tom Fields.” The court responded, “I need a
motion as to why that would be relevant at this point in the proceedings.” She
explained that although discovery was complete, she would consider it: “[I]f you
have something specific you want me to think about, of course, I’ll look at that.
But it’s going to have to be specific. We’re not going to just appoint an
investigator.” The court had already appointed two experts, a psychologist and a
mitigation specialist, and the latter “was supposed to be interviewing people and
getting information.” Thus, the court sought a request for “something specific
that would be different from what we’ve already paid for.” The record does not
indicate that Thompson’s counsel ever filed the motion.
{¶ 247} Trial counsel’s pretrial investigation was not deficient because
they failed to hire, or seek court appointment of, a private investigator. As
Thompson notes, Strickland requires defense counsel “to make reasonable
investigations” before trial. 466 U.S. at 691, 104 S.Ct. 2052, 80 L.Ed.2d 674.
The record here does not indicate the extent of counsel’s pretrial investigation, see
State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 65, and
we will not “infer a defense failure to investigate from a silent record,” State v.
Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 244. Further,
“[a]n attorney’s decision not to hire an investigator does not equate to a failure to
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investigate and result in ineffective assistance of counsel.” State v. Hairston, 9th
Dist. Lorain No. 05CA008768, 2006-Ohio-4925, ¶ 36. Here, Thompson’s
counsel may have determined that it would be inappropriate to file a motion
because they could not demonstrate a particularized need for another court
appointment. Accordingly, we defer to counsel’s conduct as a reasoned strategic
decision. See Strickland at 689.
{¶ 248} Thompson says nothing to persuade us that he did have a
particularized need for a private investigator. He offers two examples of work an
investigator might have done: reviewed Roberson’s prior statement before she
testified at trial and reviewed the videotape from the camera in Miktarian’s
cruiser. But there is no reason an investigator was needed to complete these two
tasks. Counsel could have done both themselves and, indeed, Thompson later
argues that they were ineffective because they did not. As a result, this argument
fails.
{¶ 249} Next, Thompson claims that trial counsel provided ineffective
assistance by failing to listen to Roberson’s prior statement before she testified at
trial. Roberson was the only defense witness and the only witness who testified
about the confrontation between Miktarian and Thompson on July 13, 2008. On
cross-examination, the state questioned Roberson about the differences between
her testimony and her statement to police on July 13. While counsel and the trial
court were discussing proper impeachment technique, it became clear that defense
counsel had not reviewed Roberson’s prior statement, even though the state had
made it available during discovery. The court took a break during Roberson’s
testimony to allow both Roberson and Thompson’s counsel to hear the interview
for the first time.
{¶ 250} Counsel should not have allowed a crucial defense witness to
testify without first reviewing her prior statement to police, but even so,
Thompson cannot demonstrate prejudice as a result of the error. Thompson says
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that if his counsel had been familiar with Roberson’s prior statement, they could
have better prepared Roberson to testify and the state would not have been able to
undermine her credibility. But one of Thompson’s attorneys commented, after
hearing Roberson’s statement, that “about 99 percent” of the prior statement
accorded with Roberson’s in-court testimony on direct examination. And at
closing, he argued that Roberson should be trusted precisely because her
testimony was “about 98 percent the same” as her statement hours after the
murder.
{¶ 251} Thompson also claims that but for counsel’s error, he would have
been “able to convince the court to give a manslaughter instruction.” Thompson
is wrong. Even if Roberson’s direct testimony had gone entirely unchallenged, it
did not merit a voluntary-manslaughter instruction for the reasons explained in the
analysis of proposition of law No. XII. Thus, Thompson fails the second prong of
Strickland.
{¶ 252} Thompson also argues that counsel were ineffective because they
did not watch the videotape found in Miktarian’s cruiser on July 13. He says that
this was key evidence and counsel “shirked their duty to investigate” by failing to
review it. As an initial matter, it is not clear from the record whether counsel
reviewed the tape. But regardless, Thompson cannot demonstrate that he was
prejudiced by the alleged omission. Twinsburg Police Chief Christopher Noga
testified that to his knowledge, Miktarian’s dashboard camera had not been used
in some time and the film recovered from the camera on July 13 was “old.” A
second officer testified that Miktarian’s camera “was always breaking down.”
Given this testimony, even Thompson concedes that “it is probable the tape was
completely unrelated to [his] case.” Accordingly, it is unclear how counsel’s
alleged failure to review the tape could have prejudiced Thompson.
{¶ 253} Finally, Thompson recasts part of his argument in proposition of
law No. X as an ineffective-assistance claim. According to Thompson, defense
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counsel should have ensured his presence during the inspection of Miktarian’s
personnel records. As we explained above, however, Thompson offers no support
for his claim that his presence was required, or even advisable. Further, he cannot
establish prejudice based on this alleged error, because counsel had access to
Miktarian’s entire file and were able to assess the utility of its contents.
d. Failure to Object
{¶ 254} Next, Thompson argues that counsel provided ineffective
assistance by failing to object to alleged prosecutorial misconduct, improper
expert testimony, and trial court errors.
{¶ 255} Each of these claims recasts a merits argument as ineffective
assistance of counsel: Proposition of law Nos. I (error in R.C. 2929.03(F)
sentencing opinion), IX (improper expert testimony), XI (prosecutorial
misconduct), XIII (comments about the mitigation phase), and XVI
(constitutional narrowing). For the reasons explained in this opinion, we reject
the merits of these underlying claims. As a result, we conclude that counsel did
not provide ineffective assistance by failing to object to these alleged errors.
e. Failure to Present a Complete Defense
{¶ 256} Thompson claims that he received ineffective assistance because
trial counsel failed to present a complete defense. He says counsel needed to
present an affirmative case consisting of more than Roberson’s testimony to
demonstrate provocation or self-defense. Specifically, he argues that counsel
should have (1) had Thompson testify at trial, (2) requested a self-defense
instruction, and (3) presented more affirmative evidence.
{¶ 257} First, counsel did not perform deficiently by not having
Thompson testify at trial. Defendants have “a fundamental and a personal right”
to testify, which is “waivable only by an accused.” State v. Bey, 85 Ohio St.3d
487, 499, 709 N.E.2d 484 (1999). Thompson says he needed to testify to
establish the requisite mental state for his primary defense—that he acted in a fit
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of rage or under serious provocation. But the record confirms that Thompson
waived his right to testify. Before the defense rested, the trial court asked defense
counsel, “Are you going to call him?” One of Thompson’s lawyers answered, “I
just talked to [Thompson], and he said he’s not going to testify.” Then both
defense counsel “conferred with Mr. Thompson” together, and they reported, “It
is his opinion that he does not wish to testify.” There is no evidence that
Thompson did not freely waive his right. See Bey at 499 (trial court has no
obligation to inquire about a defendant’s waiver). Accordingly, Thompson cannot
establish deficient performance in this regard.
{¶ 258} Second, Thompson argues that counsel should have requested a
self-defense instruction. Under Ohio law, “[t]o establish self-defense, a defendant
must prove the following elements: (1) that the defendant was not at fault in
creating the situation giving rise to the affray; (2) that the defendant had a bona
fide belief that he was in imminent danger of death or great bodily harm and that
his only means of escape from such danger was the use of such force; and (3) that
the defendant did not violate any duty to retreat or avoid the danger.” State v.
Barnes, 94 Ohio St.3d 21, 24, 759 N.E.2d 1240 (2002).
{¶ 259} At trial, the defense attempted to portray Miktarian as rude,
threatening, and possibly dangerous. Even so, defense counsel may have
reasonably decided not to request a self-defense instruction because they did not
think the jury would believe that Thompson was not at fault in creating the
situation or that he needed to shoot Miktarian four times, twice as he lay on the
ground, in order to escape whatever danger he supposedly faced. See State v.
Hall, 10th Dist. Franklin No. 04-AP-17, 2005-Ohio-335, ¶ 40 (firing multiple
shots undercuts a claim of self-defense). Absent evidence to the contrary, we
must presume that counsel’s decision was strategic and reject Thompson’s
allegation of deficient performance. See Strickland, 466 U.S. at 689, 104 S.Ct.
72January Term, 2014
2052, 80 L.Ed.2d 674; State v. Roberts, 8th Dist. Cuyahoga No. 69310, 1996 WL
239889, *3 (1996).
{¶ 260} Last, Thompson claims that counsel needed to produce more
evidence to prove self-defense or voluntary manslaughter. Here, trial counsel
presented Roberson’s testimony. It is not clear what other evidence Thompson
would have had counsel introduce. Thus, we presume that trial counsel’s decision
was strategic. See Wong v. Money, 142 F.3d 313, 321 (6th Cir.1998) (“under
Strickland, it is not our province to dictate to defense counsel the appropriate
strategy to pursue in a particular case”).
{¶ 261} In sum, Thompson cannot establish that he received
constitutionally ineffective assistance of counsel during the pretrial or trial phases.
2. Mitigation Phase
{¶ 262} In proposition of law No. XIV, Thompson argues that counsel
provided ineffective assistance of counsel at the mitigation phase in four respects.
{¶ 263} First, Thompson says counsel lost all credibility with the jury by
making inconsistent arguments at the trial and mitigation phases. During closing
arguments at the trial phase, defense counsel urged the jury to find that Thompson
lacked the requisite intent for aggravated murder—“he didn’t have a purpose, to
hurt this police officer.” But after the jury found that Thompson had acted with
purpose at the trial phase, counsel told the jurors that they had “nailed” the verdict
“100 percent.” Thompson says this comment amounted to an admission that
defense counsel had tried (unsuccessfully) to mislead the jurors at the trial phase,
thus completely undermining counsel’s credibility when he urged the jurors to
return a life sentence.
{¶ 264} To evaluate Thompson’s claim, we must consider the context of
defense counsel’s mitigation-phase statement. During closing arguments, counsel
said:
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There is no excuse for [Mr. Thompson’s] actions.
You guys found that in your verdict last week, which is a
verdict you guys nailed 100 percent.
It’s important that you know what happened that morning.
Again, we do not give you that to excuse his actions, but we do
present that evidence to help explain his actions.
And that is an important thing that you are going to have
to consider.
Because if you remember what the Judge told you just five
minutes ago, one of the mitigating factors is whether it is unlikely
that the offense would have been committed but for the fact that
the Defendant was under duress, coercion or strong provocation *
* *.
{¶ 265} Although somewhat inartfully expressed, defense counsel’s
message to the jury was consistent. Counsel never disputed that Thompson had
killed Miktarian at either phase of the trial. Instead, his counsel consistently tried
to focus the jurors on Thompson’s mental state. During the trial phase, counsel
argued that the circumstances of the crime indicated Thompson’s lack of
“purpose.” But after the jurors convicted Thompson of aggravated murder,
counsel adjusted the same essential argument for a different end. Rather than
continuing to argue lack of purpose to jurors who had just found purpose, counsel
endorsed the jury’s verdict and instead cited the circumstances of the crime and
Thompson’s mental state as reasons to find a specific mitigating factor: he acted
under coercion, duress, or provocation. R.C. 2929.04(B)(2). In short, counsel
continued to admit Thompson’s fault, but still attempted to explain his conduct.
{¶ 266} Trial counsel’s strategic decisions—including decisions about
how to present a mitigation case after a defendant is convicted of aggravated
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murder—are entitled to great deference. See State v. Carter, 72 Ohio St.3d 545,
558, 651 N.E.2d 965 (1995). Here, we give deference to trial counsel’s decision
and reject Thompson’s claim of deficient performance.
{¶ 267} Second, Thompson says counsel should have argued the nature
and circumstances of the offense as a mitigating factor. R.C. 2929.04(B).
According to Thompson, counsel abandoned any attempt to explain his conduct
on July 13, instead urging the jury to focus on the positive aspects of his life.
{¶ 268} Thompson’s description of trial counsel’s mitigation argument is
misleading. During his closing, counsel did urge the jury to consider the good
things Thompson had done (and his lack of significant criminal history, R.C.
2929.04(B)(5)), but he also pressed the theory that Thompson acted under
coercion, duress, or extreme provocation. See R.C. 2929.04(B)(2). In fact,
counsel argued at length about how Thompson must have felt at various points on
July 13. Thus, far from entirely dismissing Thompson’s mitigation account and
ignoring the nature and circumstances of the crime, counsel actually attempted to
portray Thompson’s conduct on July 13 as an aberration born of circumstance.
{¶ 269} Further, to the extent that Thompson asserts that counsel should
have argued the nature and circumstances of the crime as a separate mitigating
factor, we do not find that counsel were deficient in failing to do so. Counsel
discussed the circumstances of the crime in the context of articulating a theory of
coercion or provocation. If he had specifically argued the nature and
circumstances of the crime in mitigation, then the prosecutor would have been
able to argue nature and circumstances on rebuttal. Frazier, 115 Ohio St.3d 139,
2007-Ohio-5048, 873 N.E.2d 1263, at ¶ 183-184. Counsel may have wished to
avoid opening the door to potentially damaging rebuttal evidence. Accordingly,
we defer to counsel’s decision not to argue that particular mitigating factor as a
reasonable strategic judgment.
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{¶ 270} Third, Thompson says that counsel should have offered mitigation
testimony from psychological and neuropsychological experts. Although the
defense had used and consulted with court-appointed psychologist Dr. James
Siddall, the defense ultimately decided that Siddall would not testify. Thompson
argues that this decision was deficient, given the circumstances of his crime,
because it was crucial to have a psychologist testify about his actions. But the
record does not indicate what Siddall would have testified to or whether that
testimony would have been at all helpful to Thompson.
{¶ 271} Thompson also argues that counsel were deficient for not hiring a
separate neuropsychological expert. Thompson does not, however, point to any
evidence of a possible organic brain impairment that might have merited separate
examination by a neuropsychologist. See Fautenberry v. Mitchell, 515 F.3d 614,
625 (6th Cir.2008) (neuropsychological examination is the best way to determine
brain impairment).
{¶ 272} Accordingly, on this record, we cannot fault trial counsel for not
having Siddall testify or for failing to request court appointment of a
neuropsychological expert.
{¶ 273} Last, Thompson faults counsel for failing to object to the state’s
mitigation closing argument. This claim recasts part of Thompson’s
prosecutorial-misconduct claim in proposition of law No. XI, which we reject.
We likewise conclude that counsel were not deficient for failing to object.
{¶ 274} For all these reasons, Thompson’s allegations of deficient
performance during the mitigation phase fail. In addition, Thompson has failed to
establish prejudice under Strickland, 466 U.S. at 694, 104 S.Ct. 2052, 80 L.Ed.2d
674. We therefore reject these claims.
3. Cumulative Ineffective Assistance
{¶ 275} Finally, Thompson asserts that counsel’s “myriad failures”
deprived him of his right to counsel, freedom from cruel and unusual punishment,
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a fair trial, and due process. But the above analysis does not indicate myriad
failures. And even in cases when multiple errors have occurred, we have
explained that errors “cannot become prejudicial by sheer weight of numbers.”
State v. Hill, 75 Ohio St.3d 195, 212, 661 N.E.2d 1068 (1996).
{¶ 276} We therefore reject proposition of law Nos. XIII and XIV.
K. Cumulative Error
{¶ 277} In proposition of law No. XV, Thompson argues that the
cumulative impact of the many errors at his trial rendered it fundamentally unfair.
We reject this proposition. As detailed above, Thompson has not established the
multiple instances of error necessary to sustain his claim. See Powell, 132 Ohio
St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, at ¶ 223; State v. Garner, 74 Ohio
St.3d 49, 64, 656 N.E.2d 623 (1995).
L. Challenges to the Death Penalty
1. Constitutional Narrowing Requirement
{¶ 278} In proposition of law No. XVI, Thompson contends that Ohio law
unconstitutionally fails to narrow the class of homicides subject to capital
punishment because killing a law-enforcement officer constitutes aggravated
murder under R.C. 2903.01(E) and is also an aggravating circumstance under
R.C. 2929.04(A)(6). We rejected this precise argument in Bryan, 101 Ohio St.3d
272, 2004-Ohio-971, 804 N.E.2d 433, at ¶ 55. Therefore, this proposition fails.
2. Constitutional and International-Law Challenges
{¶ 279} Proposition of law No. XVIII presents six oft-raised—and always
rejected—constitutional challenges to Ohio’s capital-punishment scheme. In
addition, Thompson also argues that Ohio’s death-penalty statutes violate
international law and treaties and therefore offend the Supremacy Clause.
{¶ 280} We have previously considered and rejected each of Thompson’s
various claims. “Ohio’s statutory framework for imposition of capital punishment
* * * does not violate the Eighth and Fourteenth Amendments to the United States
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Constitution or any provision of the Ohio Constitution.” State v. Jenkins, 15 Ohio
St.3d 164, 473 N.E.2d 264 (1984), paragraph one of the syllabus. Nor does it
violate international treaties, thereby offending the Supremacy Clause. Bey, 85
Ohio St.3d at 502, 709 N.E.2d 484. Accordingly, we summarily reject
proposition of law No. XVIII. See, e.g., State v. Fry, 125 Ohio St.3d 163, 2010-
Ohio-1017, 926 N.E.2d 1239, ¶ 215-216; Davis, 116 Ohio St.3d 404, 2008-Ohio-
2, 880 N.E.2d 31, ¶ 381-383; State v. Carter, 89 Ohio St.3d 593, 608, 734 N.E.2d
345 (2000).
M. Independent Sentence Evaluation
{¶ 281} Finally, in proposition of law No. XVII, Thompson argues that his
death sentence is inappropriate and not proportionate when compared to sentences
imposed for similar offenses. This claim invokes R.C. 2929.05(A), which
requires us to independently review Thompson’s death sentence for
appropriateness and proportionality. In conducting this review, we must
determine whether the evidence supports the jury’s finding of aggravating
circumstances, whether the aggravating circumstances outweigh the mitigating
factors, and whether Thompson’s death sentence is proportionate to those
affirmed in similar cases. R.C. 2929.05(A).
1. Aggravating Circumstances
{¶ 282} Two aggravating circumstances were in play at sentencing: (1)
Thompson murdered a law-enforcement officer who was engaged in his official
duties, R.C. 2929.04(A)(6), and (2) he did so to escape detection for another
offense, R.C. 2929.04(A)(3). The evidence supports the jury’s finding of both
aggravating circumstances beyond a reasonable doubt.
{¶ 283} As to the (A)(6) specification, evidence established that Miktarian
was wearing a uniform and driving a police cruiser when he pulled Thompson
over on July 13, 2008. Miktarian had reported the stop to dispatch, taken
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Thompson’s license and insurance card, and placed one handcuff on Thompson
before he was murdered.
{¶ 284} Sufficient evidence also supports Thompson’s conviction on the
(A)(3) specification—he killed Miktarian “for the purpose of escaping detection,
apprehension, trial, or punishment for another offense committed by the
offender.” R.C. 2929.04(A)(3). Here, the trial court correctly instructed the
jurors that in order to find Thompson guilty of the (A)(3) specification, they had
to find that Thompson had committed one or more of the following offenses
before the murder: “[c]arrying a concealed weapon and/or resisting arrest and/or
operating a motor vehicle while under the influence and/or the noise ordinance.”
See State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 44
(“proof of the defendant’s commission of the prior offense” is an essential
element of the (A)(3) specification). The jury returned guilty verdicts on separate
counts of resisting arrest and carrying a concealed weapon, and Thompson does
not challenge those convictions. In addition, defense counsel conceded
Thompson’s violation of the noise ordinance before the case went to the jury.
Accordingly, the evidence supports Thompson’s conviction on the (A)(3)
specification based on these three offenses.
2. Mitigating Factors
{¶ 285} We must weigh the above aggravating circumstances against any
mitigating evidence about “the nature and circumstances of the offense” and
Thompson’s “history, character, and background.” R.C. 2929.04(B). In addition,
we must consider the statutory mitigating factors under R.C. 2929.04: (B)(1)
(victim inducement), (B)(2) (duress, coercion, or strong provocation), (B)(3)
(mental disease or defect), (B)(4) (youth), (B)(5) (lack of significant criminal
history), (B)(6) (accomplice only), and (B)(7) (any other relevant factors).
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a. Thompson’s Mitigation Evidence
{¶ 286} At the mitigation hearing, the defense presented 13 witnesses.
Thompson also made an unsworn statement to the jury.
{¶ 287} Thompson’s family and friends testified that he was a considerate
and compassionate person. He had had a stable upbringing and had been involved
in Cub Scouts and in sports while growing up. He maintained close personal
relationships and spent time taking care of others, including his mother, sisters,
and niece. Thompson also regularly came to the aid of friends in need.
{¶ 288} Thompson attended three colleges and became certified as a
licensed practical nurse (“LPN”). He had been practicing as an LPN for three
years prior to Miktarian’s murder. Witnesses testified that Thompson was
passionate about his work as a nurse and about helping others. Thompson himself
stated that he loved his profession and that he regularly bonded with patients.
{¶ 289} The witnesses also testified to Thompson’s religious convictions,
describing him as a Christian who regularly sought out spiritual counsel. From a
young age, Thompson attended church, was involved in service activities, and led
Bible studies.
{¶ 290} Finally, Thompson gave an unsworn statement. He first
addressed Miktarian’s family and said, “I apologize from the bottom of my heart.”
He said, “I can’t apologize enough,” and “I didn’t want to ever kill anybody * *
*.” He also explained that he is not unfeeling and only kept a straight face
throughout the trial upon the advice of counsel. Thompson noted that he had
confessed to killing Miktarian on the day of the incident and that he had promptly
“told [police] why.”
{¶ 291} Thompson explained that as an independent home-health-care
provider, he worked in rough neighborhoods. His shifts sometimes required him
to arrive early in the morning or late at night, so Thompson decided to purchase a
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handgun. He took a class and obtained a license to carry a concealed handgun.
He kept the gun in his car when traveling to work.
{¶ 292} Thompson then discussed his preference for loud music. He
admitted that he has one or two past misdemeanor violations on his record for
playing music too loudly. He noted that he was driving with his “music up loud”
on the night of Miktarian’s murder.
{¶ 293} Finally, Thompson began recounting the events of July 13, 2008.
As Thompson tells it, the night played out as follows:
{¶ 294} Thompson had just pulled into his driveway when Miktarian’s
cruiser pulled in behind him. Miktarian came up to the vehicle and said, “ ‘Hey,
where are you going,’ you know, ‘you playing that boom, boom, boom music.’ ”
Miktarian asked for Thompson’s license, and Thompson also offered him his
insurance card.
{¶ 295} Miktarian went back to his cruiser. When he returned, Thompson
got out of his car and asked, “ ‘Sir, what is this about? What’s going on?’ ”
Miktarian said again, “[W]ell, you got loud music and, you know, you were
playing that boom, boom, boom, you know, S word stuff and I should rip it out
and then I followed you for two miles and you pulled in here.” Thompson told
Miktarian that Thompson had not realized that Miktarian was following him until
he saw the lights pulling up in the driveway. According to Thompson, this
comment angered Miktarian.
{¶ 296} Next, Miktarian grabbed Thompson’s arm and “slapped the cuffs”
on Thompson’s right hand. Miktarian did not give Thompson any warning or say
he was under arrest. Thompson reflexively jerked away, not understanding why
Miktarian was so angry. Miktarian pulled him toward the police cruiser, but
would not respond to his continued inquiries about what was happening.
{¶ 297} At this point, Thompson said, he had heard the officer’s dog
barking, “maybe because the dog saw us, you know, struggling with each other.”
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Then Thompson “really got alarmed,” fearing that Miktarian would put him in the
back of the car with the dog. Thompson dug his “heels into the ground” and
continued to ask whether he was under arrest.
{¶ 298} The officer knocked Thompson “to the ground some kind of way,
pretty hard” and “knocked [his] wind out” for a few seconds. Thompson got up
and heard the officer radio for a unit. Then the officer threatened to release the
dog. Thompson continued to ask what was going on. He saw the officer reach to
his right side and “could have sworn he was pulling his gun out, you know, to
shoot me.” Thompson did not actually see the object, but he said “it kind of * * *
looked like the gun.”
{¶ 299} Thompson shot Miktarian. He told Roberson to get in the car, and
they left. He said he was thinking, “[I]f I’m here and the police pull up, they’re
not going to want to know what happened, they’re going to shoot us.”
{¶ 300} Thompson admitted that he never told the officer that he had a
weapon. He said he was not even thinking about the gun, since he was stopped in
his own driveway and it was not a normal traffic stop.
b. Weight of Mitigating Factors
{¶ 301} Thompson urges us to assign weight to the following mitigating
factors: the nature and circumstances of the offense; the presence of duress,
coercion, or strong provocation; his history, character, and background; his lack
of significant criminal history; his remorse; and his ability to adjust to prison.
Thompson does not argue inducement, mental disease or defect, youth, or
accomplice status.
{¶ 302} In his briefs and at oral argument, Thompson attributed significant
mitigating weight to the nature and circumstances of the offense. See R.C.
2929.04(B). Specifically, he claims that he drew his gun and shot Miktarian only
because he felt threatened and he panicked. According to Thompson’s unsworn
statement, the officer slammed him against a patrol car, threatened to release his
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dog on him, and reached for his belt. Thompson said he panicked because he
believed that Miktarian was reaching for his gun. Thompson’s counsel says all of
these factors led Thompson to make “a very bad judgment call”—a “bad
decision”—when he killed Miktarian. But the words “judgment” and “decision”
themselves suggest that Thompson was in control when he shot the officer.
{¶ 303} In addition, Thompson’s behavior on the night of the murder
undermines his claim that he was cooperative until he became convinced that
Miktarian posed a threat to him. Evidence at trial indicated that Thompson was
upset hours before he encountered Miktarian. He later told his girlfriend in a call
from prison that he had been “pissed” when he picked her up around midnight.
And at Rav’s Bar, a patron had heard Thompson saying, “There’s demons in me,”
“I will kill any one f* * *er that threatens me,” and “Nobody understands the s* *
* I’ve done and am capable of doing. I can’t even talk about it.” Thompson had
also been drinking. This evidence suggests Thompson’s state of mind when
Miktarian pulled him over.
{¶ 304} More important, the nature and circumstances of the traffic stop
itself contradict Thompson’s claim of panic. Thompson shot Miktarian four
times. First, he shot Miktarian twice from close range. After Miktarian fell,
Thompson bent down, pressed his gun up against Miktarian’s head, and pulled the
trigger two more times.
{¶ 305} Thus, the nature and circumstances of the crime do not support
Thompson’s claims of panic or entitle him to any mitigating weight. Thompson
relies on much of the same evidence to argue that “it is unlikely that the offense
would have been committed, but for the fact that [he] was under duress, coercion,
or strong provocation.” R.C. 2929.04(B)(2). As we found above, the facts do not
support Thompson’s claims that provocation led him to shoot Miktarian four
times in the head, at point-blank range. Thus, we do not assign mitigating weight
to the (B)(2) factor.
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{¶ 306} Next, Thompson says his history, character, and background are
entitled to mitigating weight under R.C. 2929.04(B). Thompson took pride in his
profession and strove to develop meaningful relationships with his nursing
patients. Indeed, he purchased a gun only to protect himself in the tough
neighborhoods where he worked. Mitigation testimony also indicates that
Thompson had a good childhood and has strong relationships with his family and
friends. Others regard him as reliable, caring, and dependable. He is well-
educated and is an active participant in his church. We give some weight to this
evidence.
{¶ 307} Thompson does not argue his youth, but we consider it under R.C.
2929.04(B)(4). Thompson was 23 years old when he killed Miktarian. This is
entitled to some weight. See State v. Ballew, 76 Ohio St.3d 244, 257, 667 N.E.2d
369 (1996) (“find[ing] the mitigating factor in R.C. 2929.04(B)(4) (youth) entitled
to little weight, since Ballew was twenty-two at the time of the offense”).
{¶ 308} We recognize that Thompson does not have a history of
significant criminal convictions. See R.C. 2929.04(B)(5). He has two prior
minor-misdemeanor convictions for violating a noise ordinance, by playing loud
music, and one conviction for having physical control of a motor vehicle while
intoxicated. We give significant weight to this factor. See White, 85 Ohio St.3d
at 454, 709 N.E.2d 140.
{¶ 309} Under the catchall provision, R.C. 2929.04(B)(7), Thompson
urges us to consider his expressions of remorse to Miktarian’s family and the
likelihood that he can adjust to life in prison. At the outset of his unsworn
statement, Thompson offered a genuine expression of remorse to the victim’s
family. He emphasized that he is not unfeeling and told Miktarian’s widow that
he could not imagine her pain. In addition, Thompson’s character as an educated,
nonviolent, caring, and dependable individual makes him well suited to adapt to
life in prison. We also give these factors some weight.
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{¶ 310} Finally, although Thompson does not argue this point (and his
initial statements were not admitted at trial), we note that he apparently admitted
responsibility to the police upon his arrest. The significance of this admission is
diminished, however, because Thompson initially fled the scene and resisted
arrest. Rather than turn himself in, Thompson struggled with officers so violently
that he pulled off a refrigerator door in the process of being apprehended. Under
these circumstances, we assign only minimal weight to his admissions.
3. Weighing
{¶ 311} As detailed above, Thompson has presented some mitigating
evidence that holds weight. We are not, however, persuaded that his actions are
mitigated either by the nature and circumstances of the offense or because he
acted under supposed provocation.
{¶ 312} On balance, the aggravating circumstances here outweigh any
mitigating factors. Thompson’s murder of a police officer engaged in official
duties and his commission of murder to escape detection are both “grave
circumstances.” See Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d
433, ¶ 227. These circumstances clearly outweigh the mitigating factors beyond a
reasonable doubt. As a result, we find that a death sentence is appropriate.
4. Proportionality
{¶ 313} The death penalty is appropriate and proportionate here when
compared to death sentences approved in similar cases. We have previously
upheld death sentences for killing a law-enforcement officer who is engaged in
official duties. See, e.g., Bryan at ¶ 228; Jones, 91 Ohio St.3d at 357-358, 744
N.E.2d 1163; State v. White, 82 Ohio St.3d 16, 29, 693 N.E.2d 772 (1998); State
v. Mitts, 81 Ohio St.3d 223, 237, 690 N.E.2d 522 (1998). We have also upheld
the death penalty for other murders committed to escape detection under R.C.
2929.04(A)(3). See, e.g., State v. Lawson, 64 Ohio St.3d 336, 353, 595 N.E.2d
902 (1992); State v. Hicks, 43 Ohio St.3d 72, 81, 538 N.E.2d 1030 (1989).
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III. CONCLUSION
{¶ 314} We affirm the judgments of conviction and sentence of death. We
also clarify that Thompson’s sentence for Count 4, fifth-degree felony escape, is
12 months, rather than five years.
Judgment affirmed.
O’CONNOR, C.J., and O’DONNELL and KENNEDY, JJ., concur.
PFEIFER and LANZINGER, JJ., concur in part and dissent in part.
O’NEILL, J., concurs in part and dissents in part.
_________________
PFEIFER, J., concurring in part and dissenting in part.
{¶ 315} I concur in the affirmance of Thompson’s convictions. There is
ample evidence to conclude beyond a reasonable doubt that Thompson committed
the heinous crimes of which he was found guilty. None of Thompson’s
propositions of law was adopted by the majority, nor should any have been.
Nevertheless, I do not agree that a death sentence is warranted. Although it is a
close call, upon independent weighing, I conclude that the mitigating
circumstances, particularly Thompson’s history, character, and background, are
sufficient to outweigh the aggravating circumstances. I would sentence
Thompson to life without parole.
LANZINGER, J., concurs in the foregoing opinion.
_________________
O’NEILL, J., concurring in part and dissenting in part.
{¶ 316} A police officer lies dead in the street and a nurse stands accused
of his murder. Following a trial, a jury has recommended a sentence of death, and
this court is charged with independently deciding whether that is the appropriate
result. A more serious matter cannot be imagined.
{¶ 317} Before affirming a sentence of death, this court is required to
consider both the offense and the offender and to independently weigh all the
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facts and evidence disclosed in the record in the case. R.C. 2929.05(A). In order
to affirm a sentence of death, a majority of this court “must be persuaded beyond
a reasonable doubt that the aggravating circumstances make the sentence
appropriate.” State v. Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, 776 N.E.2d
26, ¶ 90. And in determining whether a death sentence is appropriate beyond a
reasonable doubt, the court “shall review all of the facts and other evidence to
determine if the evidence supports the finding of the aggravating circumstances
* * * and shall determine whether the sentencing court properly weighed the
aggravating circumstances the offender was found guilty of committing and the
mitigating factors.” R.C. 2929.05(A). It is then, and only then, that the statute
permits the court to determine whether the sentence of death is appropriate.
{¶ 318} This review is critical—it is the process that was designed to
protect the defendant’s right to due process as well as to ensure that the death
penalty is reserved for those offenders for whom the legislature intended to
impose the irrevocable sanction. And in my opinion, the majority has badly
missed the mark. We must be ever vigilant to ensure that we have not abdicated
our role as the “13th juror” in death-penalty review, and here the majority’s
analysis fails.
{¶ 319} First, the court incorrectly concludes that “[t]he evidence supports
Thompson’s conviction on the [R.C. 2929.04](A)(3) specification,” that is, that
Thompson killed Officer Miktarian “for the purpose of escaping detection,
apprehension, trial, or punishment for another offense.” The evidence
unquestionably shows that Thompson committed the offenses of resisting arrest
and violation of a noise ordinance. But the record also refutes the conclusion that
Thompson killed the officer for the purpose of escaping responsibility for his
actions. The majority’s judgment totally disregards the only witness testimony to
describe the altercation. Danielle Roberson, who was a passenger in the car and
witnessed the entire deadly encounter, testified that Officer Miktarian was
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aggressive towards Thompson from the beginning. She testified under oath that
the police officer yelled at Thompson immediately upon encountering him, and
that when Thompson got out of his car, the officer, without any explanation of
what charge was being anticipated, slapped a handcuff on him and threatened to
“let [his] dog out on [Thompson’s] ass.” It is clear that the arrest process was in
progress when the altercation between the officer and the nurse turned deadly;
when he shot Officer Miktarian and even when he was subsequently arrested,
Thompson was already wearing a handcuff on one hand. Thompson explained all
of this in his mitigation statement:
And at this point, after I been cuffed and the only thing he told me
was music, and then after that, you know, I see and hear this dog
barking, okay, and you’re trying to put me in the car with that; and,
by the way, when I’m getting off the ground he threatened to
release the dog on me and he said something like “Don’t do
anything stupid, I will let him out”; so, now I’m thinking where is
this getting ready to go, all of this behind loud music and, you
know, why not a ticket or even if I was under arrest just say
something, why are you throwing me around like this and
slamming me around?
***
When he reached down to his right side I just—I could have sworn
he was pulling his gun out, you know, to shoot me.
{¶ 320} Accordingly, the only evidence presented on the issue directly
contradicts the theory that Thompson was trying to avoid responsibility, and the
majority makes no serious attempt to show otherwise. The only reasonable
explanation for this tragic event is that Thompson was confused and frightened
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and mistakenly concluded that Officer Miktarian planned to attack him—either by
releasing the police dog or by shooting him. The court’s conclusion that
Thompson shot Miktarian to avoid being detected, apprehended, or punished is
pure fiction. The necessary proof of that aggravating factor (“the purpose of
escaping detection, apprehension, trial, or punishment for another offense
committed by the offender”) can only be inferred from the fact of the crimes.
Such an inference is far short of proof beyond a reasonable doubt.
{¶ 321} As a result, there are really not two aggravating factors present in
this case, but instead only one: the victim’s status as a law-enforcement officer.
Clearly, that aggravating factor is entitled to significant weight—an officer has
died in the line of duty, and I have nothing but gratitude and sympathy for the
family of Officer Miktarian. But Ashford Thompson’s mitigating factors are
entitled to significant weight as well. He went to college, was a licensed practical
nurse and held a steady job as a home-health-care nurse, was a runner, wrestler,
and band member in high school, was involved in his community and his church,
and was a law-abiding citizen. He admitted that he took the life of a police officer
in this tragic encounter, and he expressed significant regret and remorse without
trying to minimize his own responsibility. The evidence is uncontroverted that
Thompson held a license to carry a concealed weapon, which he obtained for his
own protection as he practiced his profession of treating sick people in their
homes in dangerous neighborhoods. The sole aggravating factor, while
significant and compelling, does not outweigh Thompson’s mitigation beyond a
reasonable doubt. The majority’s conclusion to the contrary rests upon cases that
present more heinous crimes and less significant mitigation than that presented
here.1 By contrast, the evidence in this record establishes that this was a routine
1
In State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d 433, the defendant was a
wanted career criminal who shot a police officer in cold blood and attempted to kill a security
officer who witnessed the murder, and whose only mitigating evidence was slight remorse and that
he was taught positive values as a child. Id. at ¶ 2-3. In State v. Jones, 91 Ohio St.3d 335, 345,
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traffic stop gone tragically wrong. This case is not in the same category as the
premeditated intentional taking of the life of another.
{¶ 322} Reaching the conclusion that the aggravating factors do not
outweigh the mitigating factors in no way minimizes Officer Miktarian’s
sacrifice, his family’s loss, or the result of Thompson’s horrible crime. This
officer gave his life in defense of us all. But the mere fact that Miktarian was a
police officer acting in the line of duty cannot provide a justification for imposing
the death sentence. The weighing of aggravating factors against mitigating
factors is what R.C. 2929.05 requires, and absent a real independent weighing of a
death sentence, there is no way to reasonably argue that the process that resulted
in that sentence comports with due process. The majority’s failure to seriously
engage in the weighing process provides yet another reason why, in my opinion,
Ohio’s system of imposing and reviewing death sentences is unconstitutional. I
concur in the majority’s affirmance of Thompson’s conviction, but dissent from
its decision to affirm his death sentence.
_________________
Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Richard
S. Kasay, Assistant Prosecuting Attorney, for appellee.
Timothy Young, State Public Defender, and Rachel Troutman and
Kimberly S. Rigby, Assistant Public Defenders, for appellant.
___________________
357, 744 N.E.2d 1163 (2001), the defendant shot a police officer in order to escape apprehension
for an aggravated robbery, after having told his cousin that he would kill any officer who
attempted to arrest him and arming himself with a .38-caliber revolver loaded with hollow-point
bullets. In State v. White, 82 Ohio St.3d 16, 27-28, 693 N.E.2d 772 (1998), the drunken defendant
killed a state trooper by shooting him in the back, having previously fled his home after tying up
his mother and sister and shooting his mother in the foot and after having announced to others that
“something would happen” to the next officer who pulled him over. And in State v. Mitts, 81
Ohio St.3d 223, 690 N.E.2d 522 (1998), the defendant fatally shot a police officer and an innocent
bystander because of his race and then attempted to kill two other police officers, seriously
wounding one of them.
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