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Lima Killer’s Death Sentence Affirmed

2002-1377. State v. Cunningham, 2004-Ohio-7007.
Allen C.P. No. CR2002-0010. Judgment affirmed.
Moyer, C.J., Resnick, F.E. Sweeney, Pfeifer, Lundberg Stratton, O'Connor and O'Donnell, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/newpdf/0/2004/2004-Ohio-7007.pdf

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(Dec. 29, 2004) In a 7-0 decision announced today, the Supreme Court of Ohio affirmed the aggravated murder convictions and death sentence of Jeronique Cunningham of Lima for his role in the January 2002 shootings of four adults, three teenagers and a 3-year-old during a drug-related robbery. Seventeen-year-old Leneshia Williams and the 3-year-old, Jala Grant, were killed and several other victims suffered severe injuries when Cunningham and his half-brother, Cleveland Jackson Jr., emptied their guns into the victims, who were huddled together on the floor.

Writing for the Court, Justice Paul E. Pfeifer overruled or held as non-prejudicial all 14 assignments of error advanced by Cunningham's attorneys in asking the Supreme Court to reverse his convictions or reduce his sentence.

According to testimony at Cunningham's trial, he and Jackson both armed themselves and went to the home of Shane Liles, an acquaintance from whom they had purchased crack cocaine earlier the same day. While Jackson took Liles aside to discuss a purported drug purchase, Cunningham pulled a gun and herded the other seven victims into a small kitchen where he forced them to sit on the floor against a wall and demanded their money and jewelry.

After Jackson robbed Liles of a small amount of drugs and four or five hundred dollars in cash, Liles denied having any other drugs or money in the house. Jackson brought Liles into the kitchen with the others and, when Liles again denied having any more money, shot him in the back. The two robbers then emptied their guns into the seven remaining victims, killing Grant and Williams and severely wounding most of the others. One of the wounded lost her left eye, another lost the use of his right arm and a third suffered profound brain damage and was in a coma for 47 days.

The survivors identified Cunningham and Jackson as their assailants and they were arrested shortly thereafter. In June 2002, an Allen County Common Pleas Court jury convicted Cunningham of two counts of aggravated murder with death penalty specifications. He was also convicted of aggravated robbery and six counts of attempted aggravated murder. After hearing aggravating and mitigating evidence during the penalty phase, the jury recommended and the court imposed a sentence of death.

Among the allegations of error denied in today's decision, Justice Pfeifer rejected claims that Cunningham was denied a fair trial when the judge denied a motion for change of venue despite extensive pretrial publicity in Lima-area news media, allowed jurors to be shown multiple gruesome photos of the victims and crime scene, and allowed defense lawyers to compare the in -court testimony of some, but not all of the prosecution witnesses against their pretrial statements to determine if there were inconsistencies that could be attacked on cross-examination.

Citing case law that has held “(a) careful and searching voir dire” (questioning of prospective jurors) to be the best way of determining whether a fair and impartial jury can be empanelled, Justice Pfeifer wrote that “Here, the trial court conducted an extensive voir dire that covered four days and nearly 900 pages of transcript … After a thorough general voir dire with counsel for both sides participating, the trial court conducted a sequestered voir dire during which the prospective jurors were individually questioned regarding the death penalty and exposure to pretrial publicity.”

While most prospective jurors acknowledged hearing something about the case through the media, Justice Pfeifer noted that most also said they had not formed an opinion about Cunningham's guilt and could presume him innocent. Since the trial judge readily excused those who said they had formed fixed opinions or were otherwise unsuitable to serve, and since Cunningham's attorneys failed to challenge any of the jurors seated in the case despite not having used all of their peremptory challenges, Justice Pfeifer concluded that the defense “failed to show that ‘the publicity in this case was so pervasive that it impaired the ability of the impaneled jurors to deliberate fairly and impartially.'

With regard to review of witness statements, Justice Pfeifer wrote that the trial court's failure to provide defense counsel with copies of three of six prosecution witnesses' pretrial statements for direct review may have been incorrect, but did not rise to the level of reversible error. He based that ruling partially on the fact that the witness accounts in question (contained in police incident reports) were not direct statements signed or affirmed by the actual witness, but rather were investigating police officers' notes summarizing what an officer understood a witness to have said. In the Court's 1984 decision in State v. Jenkins , he wrote, “we specifically excluded from discovery … portions of a police officer's report, including statements from other witnesses contained therein.”

Even if the incident reports did constitute “statements” subject to review by defense counsel, Justice Pfeifer added, Cunningham's attorneys waived all but “plain error” because they failed to object when the trial judge provided only the three witness statements in which the judge found possible inconsistencies. “There was no plain error,” wrote Justice Pfeifer. “Defense counsel and the prosecutor were present while the trial court reviewed the statements … (O)nce the trial court concluded that there were no inconsistencies between the statements and trial testimony of Goodloe, Coron Liles and Tomeaka Grant, defense counsel did not request to review the statements or object to the procedure employed by the court … Under somewhat similar circumstances in Jenkins, we said that ‘a defendant cannot be heard to complain on appeal about a matter which the trial judge could have remedied if the defense had complained then.'”

Contacts
Jana E. Gutman, 419.222.2462, for the state of Ohio.

Pamela Prude-Smithers, 614.466.5394, for Jeronique Cunningham.