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Tuesday, May 7, 2013

State of Ohio v. Donna Marie Roberts, Case no. 2007-2288
Trumbull County Court of Common Pleas

State of Ohio v. Daniel Arden Keck II, Case no. 2011-0686
Fourth District Court of Appeals (Washington County)

In re: D.S. A Minor Child, Case no. 2012-1041
Eighth District Court of Appeals (Cuyahoga County)

State of Ohio v. David T. Washington, Case no. 2012-1070
Ninth District Court of Appeals (Lorain County)

Death Penalty Resentencing

State of Ohio v. Donna Marie Roberts, Case no. 2007-2288
Trumbull County Court of Common Pleas

ISSUE: In resentencing  a Trumbull County woman to death for her role in the murder of her ex-husband, did the trial court err by refusing to consider during its resentencing hearing mitigating evidence about the defendant’s history of head injuries and mental health treatment prior to the murder that she prohibited her attorneys from introducing during the penalty phase of her original trial?

BACKGROUND: Donna Roberts was convicted of aggravated murder with death penalty specifications, aggravated burglary, and aggravated robbery for conspiring with her ex-convict lover, Nathaniel Jackson, to ambush and kill her ex-husband and housemate, Robert Fingerhut, in order to collect on Fingerhut’s life insurance. During the sentencing phase of her trial, Roberts prohibited her attorneys from offering any evidence of mitigating factors to be weighed against the aggravating factors set forth by the state in support of the death penalty. The jury took less than a day to recommend the death penalty, and the trial court sentenced Roberts to death in June 2003.

During its mandatory review of the case, the Supreme Court of Ohio affirmed Roberts’ convictions but vacated her death sentence and remanded the case to the trial court for resentencing based on findings that the trial judge had failed to allow Roberts to allocute (make an oral statement to the judge in court prior to the pronouncement of sentence), and had improperly involved the prosecutor in preparing the judge’s sentencing opinion affirming imposition of the death penalty.

In 2007, prior to a new sentencing hearing before the same judge that had presided over Roberts’ 2003 trial, her attorneys requested that the judge recuse himself and also moved the court to expand its resentencing hearing to include consideration of all relevant mitigation evidence. The judge denied both motions, and ruled that the resentencing hearing would be restricted to allowing Roberts to allocute.  Prior to the hearing, the court granted a defense motion for a competency hearing. A court-appointed psychiatrist testified that in his opinion Roberts was competent to participate in the resentencing proceedings, and the court found her to be competent. The court then conducted a hearing that was limited to hearing Roberts’ allocution. The trial judge subsequently entered a new sentencing opinion stating his independent finding that the aggravating factors favoring the death penalty outweighed mitigating factors in the case, and again found that death was the appropriate penalty.

Roberts has exercised her right to appeal the trial court’s resentencing order to the Supreme Court.

Attorneys for Roberts have raised seven assignments of error that they contend are grounds for the court to reduce her death sentence to a term of life imprisonment, or in the alternative to remand the case to the trial court for another resentencing hearing before a different judge.  Among those claims, they argue that:

Attorneys for the state respond that:

Representing Donna Roberts: David L. Doughten, 216.361.1112

Representing the state and Trumbull County prosecutor’s office: Dennis Watkins, 330.675.2426

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Must Lab Technician Who Created DNA Profile Testify at Trial When Test Showing Match to That Profile Offered as Evidence?

Defendant Asserts Constitutional Right to Confront, Cross Examine Analyst

State of Ohio v. Daniel Arden Keck II, Case no. 2011-0686
Fourth District Court of Appeals (Washington County)

ISSUE: In a criminal trial where the state introduces laboratory test results that purport to show a match between a known sample of the defendant’s DNA and DNA recovered from a victim or crime scene, do the confrontation clauses of the U.S. and Ohio Constitutions require the state to present in-court testimony not only by the analyst who compared the crime scene evidence to the defendant’s DNA sample, but also by a different analyst who processed the defendant’s DNA sample?

BACKGROUND: Daniel Keck II of Marietta was indicted in 2009 on multiple counts of rape, gross sexual imposition, and pandering obscenity involving a minor for allegedly engaging in sexual acts and taking nude photos of multiple teenage and pre-teen boys with whom he developed close personal relationships while serving as a leader of a church-affiliated youth group.  The boys regularly spent time, including overnight visits, at Keck’s home, and accompanied him on camping and vacation trips.

After his arrest, prosecutors obtained oral swabs containing genetic material from Keck and five of the alleged victims, and forwarded the samples, labeled with the names of the donors, to the Ohio Bureau of Criminal Investigation (BCI).  A forensic scientist employed by BCI, Mark Losko, used those samples to generate a DNA “profile” of each of the six individuals from whom swabs were taken. 

Marietta police also sent items taken from Keck’s home, including bedding from a guest room in which the boys slept when visiting the defendant, to BCI for testing. A second forensic analyst employed by BCI, Kristen Slaper, tested the bedding and found that it contained biological material, including semen, from several different individuals.  Slaper conducted lab tests of the biological material, and developed a DNA profile for each of the (as yet unidentified) persons who was a source of that material.

During Keck’s jury trial, Slaper testified that after developing DNA profiles of the “unknown” persons who were sources of biological material on the bedding, she had compared those profiles with the “known” DNA profiles of Keck and the five alleged victims that Losko had developed from the oral swabs.  Over defense objections, the court allowed Slaper to testify that her testing showed that semen from the bedding matched the profiles obtained from the oral swabs of Keck and two of the boys he was accused of molesting.

Keck was found guilty on multiple felony counts and sentenced to a total of 71 years in prison. 

He appealed, asserting among other claims that the trial court had violated his constitutional right to confront the witnesses against him by allowing the state to present DNA evidence that was partially based on tests conducted by Losko exclusively through the testimony of Slaper, who did not participate in or observe Losko’s processing of the DNA obtained from the oral swabs.  The Fourth District Court of Appeals rejected Keck’s argument and affirmed the decision of the trial court.  Keck sought and was granted Supreme Court review of the Fourth District’s ruling.

Attorneys for Keck assert that  the trial and appellate court decisions in this case are in conflict with a line of recent decisions, including Melendez-Diaz v. Massachusetts (2009) and Bullcoming v. New Mexico (2011),  in which the U.S. Supreme Court has held that prosecutors may not establish the accuracy of scientific testing merely by introducing written affidavits attesting to test results, or by having a third-party expert testify in court about the results of laboratory tests that were conducted by a different person who does not appear in court to face cross-examination by the defendant.

They argue that in this case, as with the defendant in Bullcoming, the trial court violated Keck’s right to confront the accuracy of scientific evidence offered against him by allowing Slaper to testify that
the crime scene evidence matched Keck’s DNA profile when the testing that established that profile was actually performed by a different person (Losko) who did not appear in court or face cross-examination.

Attorneys for the state respond that this case is distinguishable from the situation addressed by the U.S. Supreme Court in Bullcoming.  In Bullcoming, they note, the trial court impermissibly allowed the state to establish the accuracy of a blood-alcohol test performed by one technician through a written report signed by that person that was presented in court through the testimony of a different technician who did not participate in or witness the actual testing of the defendant’s blood..

In this case, they argue,  Slaper did not testify at trial as a “surrogate” for Losko, but instead offered testimony  exclusively about testing that she had conducted herself, first to analyze the DNA obtained from Keck’s guest room bedding, and then to compare the crime scene DNA with DNA collected directly from Keck.  As a practical matter, the state also points out that as demands for DNA testing have increased dramatically in recent years, BCI has changed its procedures to involve multiple technicians in different specialized stages of the testing process.  If the court were to adopt Keck’s proposed standard that every technician who had any contact with such evidence must testify in court, they assert, the crime lab would be severely hampered in its day-to-day operations without any measurable  enhancement of defendants’ ability to conduct an effective defense.

Representing Daniel Keck II: Charles H. Rittgers, 513.935.2115

Representing the state and Washington County prosecutor’s office: Alison L. Cauthorn-Kreiss, 740.373.7624

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Does Juvenile’s Failure to Answer Discovery Request Delay Speedy Trial Deadline in Serious Youthful Offender Case?

In re: D.S. A Minor Child, Case no. 2012-1041
Eighth District Court of Appeals (Cuyahoga County)

ISSUE:  In a juvenile court case involving a minor charged under the state’s “serious youthful offender” (SYO) statute, does the defendant’s continuing failure to respond to a reciprocal discovery request that was tendered by the state before he was charged as an SYO delay the running of the 90-day speedy trial time limit within which an incarcerated SYO defendant must be brought to trial?

BACKGROUND: A juvenile identified by the initials D.S. was arrested in October 2009 and charged with delinquency counts of murder and felonious assault with firearm specifications for the fatal shooting of an 18-year-old and attempted shooting of two other persons following an argument at a Cleveland bus stop.

On January 13, 2010, attorneys representing D.S. filed a discovery request with the Cuyahoga County prosecutor’s office seeking to examine police reports and other information in the state’s case file.  Six days later, on January 19, the state filed a reciprocal request seeking discovery of information from D.S.  The state filed its response to D.S.’s discovery request on January 20.  D.S. did not respond to the state’s discovery request.

Between January and April of 2010, the state pursued a motion in the Cuyahoga County Juvenile Court to bind over D.S., who was 15 at the time of the shootings, for trial as an adult.  On April 28, the juvenile court denied the bindover motion, retaining the case for trial in the juvenile system. 

On May 4, 2010, the state filed a notice that it intended to prosecute D.S. under the state’s Serious Youthful Offender (SYO) statute, which allows a juvenile found guilty of a serious violent offense to receive a “blended” sentence that includes a term of confinement in a juvenile correctional facility plus a stayed adult sentence that will be imposed if the offender does not successfully complete rehabilitation in the juvenile corrections system. D.S. was subsequently  indicted by a grand jury on multiple SYO counts. The May 4 filing of the SYO  notice triggered the application of Ohio’s “speedy trial” law to D.S.’s case.  Under the speedy trial law, an adult offender or juvenile charged as an SYO must be brought to trial within 270 days after the state initiates prosecution.  Because D.S. remained  incarcerated  prior to trial, the law required that each day he was in custody be counted as three days toward the speedy trial deadline, with the practical effect that the state was required to bring him to trial within 90 days after May 4, 2010.

In a trial that took place on August 16, 2010, D.S. was adjudicated delinquent on all counts and specifications.  He was placed in the custody of the Ohio Youth Commission until his twenty-first birthday, and also sentenced to multiple terms of adult prison time that were stayed pending his successful completion of his juvenile commitment.

D.S. subsequently appealed his convictions and sentence to the Eighth District Court of Appeals, arguing that they should be dismissed because the state had failed to bring him to trial within the 90-day speedy trial deadline which had expired on August 2,  two weeks before his trial took place.  

In response to that claim, the state argued that under R.C. 2945.72 a defendant’s speedy trial time is tolled (does not run) during “any period of delay occasioned by the neglect or improper act of the accused.”  Citing the Supreme Court of Ohio’s 2007 holding in State v. Palmer that a defendant’s delay in complying with a discovery request constituted “neglect” that tolled the running of speedy trial time, the state asked the court of appeals to hold that D.S.’s failure to comply with the state’s January 19, 2010, discovery request had tolled the speedy trial deadline in his case for a reasonable period, and that the 14 days that had elapsed between August 2 and his trial on August 16 did not represent an unreasonable delay in his prosecution.

The Eighth District rejected the state’s argument, vacated D.S.’s convictions on speedy trial grounds, and ordered that he be released from custody.  In a 2-1 majority opinion, the court of appeals distinguished this case from Palmer based on its findings that Palmer involved an adult offender who belatedly complied with a discovery request rather than a juvenile charged under the SYO statute who did not respond at all,  that the state had multiple opportunities to seek a court order compelling discovery from D.S. before the speedy trial deadline expired but failed to do so, and that the state had not shown that D.S.’s discovery violation had any prejudicial effect on its ability to bring him to trial within 90 days.

The state sought and was granted Supreme Court review of the Eighth District’s ruling.

Attorneys for the state argue that the court of appeals erred by failing to follow the Supreme Court’s Palmer decision. They assert that the procedural rules governing  discovery in criminal cases impose the same standard of compliance on juveniles charged under the SYO statute as on adult offenders. They also argue that nothing in the provisions of R.C. 2945.72 that toll a defendant’s speedy trial time based on his own neglect requires that the state must show that it pursued additional motions  to enforce an original discovery request, or that its ability to prosecute the case was impaired by the defendant’s  failure to provide discovery.

Attorneys for D.S. urge the court to affirm the Eighth District’s ruling, which they say merely enforced the letter and intent of the speedy trial law that the state must bring persons who are being held in custody to trial within a reasonable and clearly defined time period after they are placed under arrest.  They contend that the court of appeals properly found that the state’s failure to meet its speedy trial duty in this case had nothing to do with D.S.’s failure to comply with a discovery request, and that the state had every opportunity to obtain any information it needed to proceed with the case through a motion to compel long before the speedy trial deadline expired.

They also argue that because the 90-day “clock” for bringing D.S. to trial did not begin to run until the state filed its notice of intent to prosecute him under the SYO statute in May 4, 2010, the tolling provision of R.C. 2945.72 could only be applied against D.S. for “neglect” that took place after that deadline was in place, and cannot be based on a discovery request he received nearly four months before the speedy trial statute was even applicable to his case.

Representing Juvenile Offender D.S.: Sheryl Trzaska, 614.466.5394

Representing the state and Cuyahoga County prosecutor’s office: Kristen Sobieski, 216.698.2226

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In Deciding Whether Convictions Should be Merged as ‘Allied Offenses,’ Is Court Limited to Theory of Crime Argued to Jury?

State of Ohio v. David T. Washington, Case no. 2012-1070
Ninth District Court of Appeals (Lorain County)

ISSUE:  In a case where a criminal defendant has been found guilty by a jury of two different crimes arising from the same conduct, in determining whether those crimes should be merged into a single conviction for sentencing as “allied offenses of similar import,”  must the trial court base its analysis on the theory of the crimes that was presented to the jury at trial, or may the court consider an alternative theory advanced by the state at the time of sentencing?”

BACKGROUND: Under Ohio’s “multiple count” statute, R.C. 2941.25, when the same conduct by a defendant can be construed to constitute two different crimes that are similar in nature but have somewhat different elements, the state may indict and prosecute the defendant for both offenses, but if the defendant is found guilty of both “allied offenses,” the court is required to merge those findings of guilt into a single conviction that is punishable by a single sentence.

In this case, David Washington of Elyria was charged with felony counts of failure to comply with the order or signal of a police officer and obstructing official business based on his involvement in a high-speed chase along Interstate 90 in Lorain and Cuyahoga counties while fleeing from police in a stolen SUV. At the end of the police chase, Washington and an accomplice abandoned the vehicle at the edge of a wooded area and briefly fled on foot, but were captured within minutes while attempting to hide in a nearby drainage ditch.  (Washington was also convicted of theft for stealing the vehicle he was driving during the chase, however that conviction is not at issue in this case).

At trial, the prosecutor argued to the jury that Washington’s failure to pull over in response to the lights and sirens of pursuing police cars, his continuing efforts to escape from the police over a 10-minute period, and the danger in which he placed law enforcement personnel and other drivers on the highway during the high-speed chase established the required elements of both the failure to comply and obstruction charges. The jury returned guilty verdicts on both counts, and the trial court entered separate convictions and imposed separate sentences for the failure to comply and obstruction charges.

Washington appealed.  On review, the Ninth District Court of Appeals remanded the case to the trial court with a directive to consider whether the failure to comply and obstruction counts were “allied offenses of similar import” subject to merger under R.C. 2941.25. At a subsequent hearing on the allied offenses issue, the state argued that the two charges were not subject to merger because the failure to comply charge was based on Washington’s conduct during the vehicle chase while the obstructing official business count was based on his separate conduct of fleeing on foot into the woods after abandoning the vehicle. The trial judge agreed with the state’s position and reimposed separate convictions and consecutive sentences for the two charges.

Washington again appealed the trial court’s action to the Ninth District. In a 2-1 decision, the court of appeals reversed the trial court’s decision and ruled that because the state had argued to the jury that the same conduct by Washington was the basis for both the failure to comply and obstruction charges,  those counts were allied offenses of similar import pursuant to the multiple-count statute. Accordingly, the appeals court  ordered the trial judge to resentence Washington for one, but not both, of those offenses.  The state sought and was granted Supreme Court review of the Ninth District’s ruling.

Attorneys for the state argue that the court of appeals erred by improperly limiting the state’s arguments opposing merger of Washington’s crimes for sentencing purposes to the theory of the crimes it had advanced during the guilt phase of the trial.  They assert that because the question of whether multiple counts are subject to merger as allied offenses is exclusively a sentencing issue that does not arise until a defendant’s guilt on each count has been established, both the state and the defendant should be free to raise and a trial court should be free to consider any legal argument supporting or opposing the merger of counts for sentencing purposes that is supported by the evidence.

In this case, they contend, the evidence considered by the jury included police testimony and dashboard video footage showing that after the vehicular pursuit of Washington had ended, he chose to engage in a new form of obstruction by fleeing on foot into a wooded area and thereby exposing the pursuing police officers to a new and different range of potential hazards.  In light of that evidence, they argue, the Ninth District should not have overruled the trial judge’s finding that Washington’s on-foot flight constituted a separate act of criminal conduct subject to a separate conviction and sentence.

Attorneys for Washington respond that the Supreme Court has already addressed the issue raised by the state in this case in State v. Williams, a 2012 decision in which they say the court held that in deciding whether multiple counts are allied offenses that must be merged, courts must rely on the factual determinations made by the jury in finding the defendant guilty of the charged offenses. In this case, they assert, the state consistently argued to the jury throughout his trial that Washington’s flight from the police was a single course of conduct that started when police spotted the stolen vehicle he was driving and ended with his capture in the woods. 

They argue that the state was only able to obtain a guilty verdict on a felony count of obstructing official business by convincing jurors that the risk of injury inherent in a high-speed vehicle chase carried over to Washington’s one or two-minute flight into the woods before being caught. They urge the court to affirm the Ninth District’s holding that the trial judge erred by imposing a separate, consecutive prison term on the obstruction count based on the state’s inconsistent argument during the sentencing process that the two stages of Washington’s escape attempt should be viewed as separate criminal acts.

Representing the state and Lorain County prosecutor’s office: Mary R. Slanczka, 440.329.5389

Representing David Washington: Stephen P. Hardwick, 614.466.5394

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These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.

Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.