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State of Ohio v. Bennie Adams

October 14, 2011

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
BENNIE ADAMS, DEFENDANT-APPELLANT.



CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas Court, Case No. 07CR1261.

The opinion of the court was delivered by: Vukovich, J.

Cite as State v. Adams,

JUDGMENT:

JUDGES: Hon. Joseph J. Vukovich Hon. Gene Donofrio Hon. Cheryl L. Waite

OPINION

Affirmed.

¶{1} Defendant-appellant Bennie Adams appeals from his conviction of aggravated murder and the accompanying death sentence which was entered in the Mahoning County Common Pleas Court. He sets forth twenty-one assignments of error in a brief spanning five hundred twenty-eight pages. For the following reasons, the judgment of the trial court is hereby affirmed.

STATEMENT OF THE CASE

¶{2} Gina Tenney was a nineteen-year-old university student living in a duplex apartment on Ohio Avenue in Youngstown. Appellant Bennie Adams lived with his girlfriend in the apartment below. Ms. Tenney broke up with her boyfriend in the fall of 1985 at which time appellant began calling her. She eventually changed her telephone number. On December 25, 1985, someone tried to break into Ms. Tenney's apartment. On December 28, 1985, she reconciled with her boyfriend, and he stayed overnight.

¶{3} He left her apartment at 1:00 p.m. on December 29. (Tr. 121-122). She then went to a movie and dinner with a friend and started for home between 4:30 and 5:00 p.m. (Tr. 140, 143). That evening, Ms. Tenney telephoned her mother in Ashtabula and asked her to come get her because she was "in the wrong place." At 9:30 p.m., someone used her ATM card multiple times at a bank, entering that deposits were being made while placing empty envelopes in the machine and making four unsuccessful withdrawal requests. (Tr.168, 260-263).

¶{4} On the morning of December 30, 1985, the body of Gina Tenney was discovered in the Mahoning River, a few miles from her residence. There were ligature marks on her neck and wrists, and rape kit swabs revealed the presence of semen. (Tr. 417, 471, 575). Police arrived at Ms. Tenney's apartment to look for evidence. Her car was parked in front. (Tr. 161). Appellant let the police into the apartment's common area. He then let them into his apartment to use his telephone to call the landlord in order to unlock Ms. Tenney's apartment. (Tr. 147-148). ¶{5} While in appellant's apartment, an officer recognized Horace Landers as a person with an outstanding arrest warrant. A shirtless Mr. Landers was handcuffed and provided with a shirt and what the police believed was his jacket. The jacket was searched for safety reasons before it was placed on Mr. Landers, and a detective found Ms. Tenney's ATM card and a welfare card containing appellant's name in the pocket. (Tr. 151). Contemporaneously, Mr. Landers stated that the jacket belonged to appellant.

¶{6} The police arrested appellant for receiving stolen property. Appellant's girlfriend, who was the main tenant, gave consent to search the apartment. Ms. Tenney's television, upon which appellant left his fingerprints, was sitting on a bed. (Tr. 158-159, 200). Ms. Tenney's keychain, containing her house and car keys, was found in the bathroom trash. (Tr. 155-156). In another trash can, police found a potholder that matched a potholder found in Ms. Tenney's apartment. (Tr. 157). Samples from this potholder disclosed red pubic and head hair consistent with that of Ms. Tenney and hair fragments belonging to an African-American. (Tr. 562-563). ¶{7} Police interviewed the Allies, a couple who used the ATM immediately after Ms. Tenney's card had been used. They stated that the person using the ATM was a black male who had a scarf covering most of his face and who did not seem to know what he was doing. (Tr. 294-295, 312). On January 2, 1986, Mr. Allie picked Ms. Tenney's car out at the police garage by sight and sound as being the one driven by the ATM user. (Tr. 170-171, 217, 297-298, 313). On January 8, 1986, the Allies attended a line-up containing appellant and Mr. Landers. (Tr. 307). Mr. Allie would not identify anyone at the time, and Mrs. Allie identified Mr. Landers. (Tr. 338-339).

¶{8} A short time later, Mr. Allie called the detective to express that they knew which person in the line-up was the ATM user, but they were afraid to identify him at the time because too many people were watching them. (Tr. 299, 307, 314-315, 317, 325). Mr. Allie testified that he knew appellant from the neighborhood and that he recognized him as soon as he turned from the ATM machine. (Tr. 290, 309-310). In fact, he stated that appellant put his hand on the hood of their car and waved. (Tr. 294-295). Mrs. Allie testified that she identified Mr. Landers at the station because she was terrified with the set up and he was the opposite of appellant, whom she later identified from a photograph of the line-up. (Tr. 325, 327).

¶{9} In February of 1986, BCI testing of the semen found on the victim's underwear excluded Mr. Landers and Ms. Tenney's boyfriend but did not exclude appellant. The combination of Type B and non-secretor indicators was said to occur in four percent of the black population of which appellant was a member. (Tr. 556-557).

¶{10} Appellant's receiving stolen property charge was presented to a grand jury on February 21, 1986. However, a no bill was returned, which apparently made the prosecution leery of presenting a murder charge to the grand jury at that time. In 1989, samples were sent to Virginia for DNA testing. The results stated that the semen was consistent with appellant but was also consistent with 8% of the Caucasian population and 12% of the black population. Thus, the statistics were now even worse for the state's case.

¶{11} In 2007, the forensic evidence was submitted to BCI for retesting with new technology. DNA standards were recovered from the rape kit swabs. Appellant was arrested on October 4, 2007 to ensure that a search warrant could be executed to obtain his DNA. The results came back positive on October 11, 2007.

¶{12} Appellant was immediately indicted for aggravated murder, rape, aggravated burglary, aggravated robbery, and kidnapping. (Tr. 582, 587). A death specification was thereafter added by a superseding indictment, which alleged that he committed the aggravated murder while committing, attempting, or fleeing immediately after committing or attempting to commit one of the other enumerated underlying felonies and that he was the principal offender. Appellant filed various motions, most of which were denied. On July 28, 2008, the court dismissed counts two through five (the underlying felonies) on statute of limitations grounds. The trial for aggravated murder proceeded through most of October of 2008.

¶{13} On October 22, 2008, the jury returned a verdict of guilty on the aggravated murder charge and on the death specification. On October 29, 2008, the jury recommended a death sentence. On November 5 and 6, 2008, the court adopted this recommendation and filed an opinion weighing the various statutory factors. A timely appeal was filed with this court. Appellant filed a brief containing 528 pages. Appellant sets forth twenty-one assignments of error, which shall be grouped into four main sections: pretrial issues, jury selection issues, trial issues, and penalty phase issues.

PRETRIAL ISSUES

¶{14} The pretrial issues are contained in the following six assignments of error: three, four, and eleven (dealing with suppression) and five, twelve, and thirteen (dealing with delay).

ASSIGNMENT OF ERROR NUMBER THREE ¶{15} Appellant's third assignment of error alleges:

¶{16} "APPELLANT'S CONVICTIONS AND SENTENCES ARE IN VIOLATION OF THE STATE AND FEDERAL CONSTITUTIONS BECAUSE APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN COUNSEL FAILED TO FILE A MOTION TO SUPPRESS EVIDENCE, AND UNRELIABLE EYEWITNESS TESTIMONY WAS ADMITTED AGAINST APPELLANT AT TRIAL [CITATIONS OMITTED]."

¶{17} We review a claim of ineffective assistance of counsel under the two-part test articulated in Strickland v. Washington (1984), 466 U.S. 668. Specifically, a reviewing court will not deem counsel's performance ineffective unless a defendant can show his lawyer's performance fell below an objective standard of reasonable representation and that prejudice arose from the lawyer's deficient performance. State v. Bradley (1989), 42 Ohio St.3d 136.

¶{18} To show prejudice, a defendant must prove that, but for his lawyer's errors, a reasonable probability exists that the result of the proceedings would have been different. Id. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. Prejudice may not be assumed but must be affirmatively shown. See State v. McGee, 7th Dist. No. 07MA137, 2009-Ohio-6397, ¶13.

¶{19} When considering an ineffective assistance of counsel claim, the reviewing court should not consider what, in hindsight, may have been a more appropriate course of defense. See State v. Phillips (1995), 74 Ohio St.3d 72, 85. Our review of counsel's action is highly deferential as there is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id.

¶{20} Trial counsel's failure to file a motion to suppress does not necessarily constitute ineffective assistance of counsel. State v. Madrigal (2000), 87 Ohio St.3d 378, 389. However, the failure to file a motion to suppress may constitute ineffective assistance of counsel when the record demonstrates that the motion would have been granted. State v. Barnett, 7th Dist. No. 06-JE-23, 2008-Ohio-1546, ¶31. ¶{21} Appellant argues that counsel should have moved to suppress the eyewitness identification regarding his use of the ATM machine because the totality of the circumstances shows that their identification of appellant was unreliable. He cites Mr. Allie's failure to identify anyone at the line-up and Mrs. Allie's original identification of Mr. Landers and notes that the ATM user's face was mostly covered with a scarf. See Neil v. Biggers (1972), 409 U.S. 188, 198 (listing reliability factors such as the opportunity to view the defendant at the time of the crime, the degree of attention, the accuracy of prior description, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation). See, also, Manson v. Brathwaite (1977), 432 U.S. 98, 114-16 (stating that the factors are weighed against the issues with the procedure which were previously found to be problematic). ¶{22} The state responds that the identification was reliable because the Allies sufficiently explained why they did not identify appellant at the line-up: the room was bright and filled with random people who would bear witness to their identifying a murderer. The state points out although the bottom half of appellant's face was covered, the Allies had a good opportunity to view appellant. Moreover, Mr. Allie stated that he already knew appellant from the neighborhood and had a high level of certainty concerning his identification. The state also notes that the length of time between the initial encounter and the ultimate identification was not lengthy. It is also noteworthy that Mr. Allie showed a high degree of attention by identifying the car by both sight and sound. In addition, testimony showed that they were worried about approaching the ATM while appellant was present. Thus, a court could reasonably find that their identification was not unreliable.

¶{23} In any event, convictions based on eyewitness identifications at trial following pretrial identification by photograph will be set aside only if the identification procedure was so impermissibly suggestive so as to give rise to a very substantial likelihood of irreparable misidentification. See McGee, 7th Dist. No. 07MA137 at ¶18. Even if the procedure was unduly suggestive, the identification can still be admitted if it is reliable under the totality of the circumstances. Id. at ¶19. However, if the procedure was not unduly suggestive, then the reliability prong of the test never arises. State v. Gross, 97 Ohio St.3d 121, 2002-Ohio-5524, ¶19 ("[w]hen a witness has been confronted with a suspect before trial, due process requires a court to suppress her identification of the suspect if the confrontation was unnecessarily suggestive of the suspect's guilt and the identification was unreliable under all the circumstances," noting the special emphasis placed on "and"); State v. Murphy (2001), 91 Ohio St.3d 516, 534; State v. Waddy (1992), 63 Ohio St.3d 424, 439. See, also, Manson, 432 U.S. at 114-16 (noting that the factors are to be weighed against the corruptive effect of the suggestive identification, meaning that if the suggestiveness was not improper, there is nothing to weigh the factors against, i.e. the factors are irrelevant if there was not a suggestive identification).

¶{24} Appellant makes absolutely no argument that there were unduly suggestive police procedures implemented here or that something was inherently wrong with the line-up itself, and nothing in the record indicates that such an argument could be made here. Rather, appellant argues only about the reliability of the identification made by the witnesses. Since reliability is not a pretrial suppression issue unless the procedure is alleged and found to have been unduly suggestive, appellant's argument is without merit. Thus, reliability was not a matter for suppression here but was instead a matter of weight and credibility for trial. This assignment of error is overruled.

ASSIGNMENT OF ERROR NUMBER FOUR ¶{25} Appellant's fourth assignment of error argues:

¶{26} "THE TRIAL COURT ERRED IN FAILING TO SUPPRESS ITEMS SEIZED BY THE POLICE ON DECEMBER 30, 1985 FROM THE RESIDENCE OF THE APPELLANT, AS SAID SEIZURES WERE [UNCONSTITUTIONAL] [CITATIONS OMITTED]."

¶{27} After finding the victim's body in the Mahoning River on the morning of December 30, 1985, police went to her apartment on Ohio Avenue. Appellant let the officers into the common area of the building. They discovered that the victim's apartment door was locked. One of the detectives once lived in the building, and he knew the landlord. The officers asked appellant, who was staying in the downstairs apartment, if they could use his telephone to call the landlord about obtaining keys. Appellant consented and let them into his apartment. (Supp.Tr. 4-5). The officers then asked some standard questions about the victim and asked if anyone else was home who may have seen anything unusual. Appellant told the police in a mumbling tone that he was alone at which point the officers heard a noise described as a bump or a crash from a bedroom that sounded like a door hitting a wall. (Supp.Tr. 5).

Appellant then declared, "I never said he wasn't here." (Supp.Tr. 5, 10).

¶{28} The police checked the bedroom for safety reasons and found Horace Landers standing there without a shirt. (Supp.Tr. 5, 12-13). One of the officers knew that Mr. Landers had an outstanding warrant. The police placed him under arrest, cuffing his hands behind his back. (Supp.Tr. 5, 22). As he was going to be taken outside to wait for transport, a detective asked Mr. Landers where his shirt was, and he indicated one on the bed, which the detective then picked up and draped over Mr. Landers' shoulders. (Supp.Tr. 5).

¶{29} As it was winter, the detective picked up a jacket on the floor just outside the bedroom doorway three to four feet from Mr. Landers. (Supp.Tr. 5-6, 20). The detective commenced searching it for weapons as he asked Mr. Landers if the jacket was his. The detective felt something hard and sharp in the jacket pocket, and pulled out Gina Tenney's ATM card. (Supp.Tr. 6, 24, 27, 29). Mr. Landers responded that the jacket belonged to appellant, and a welfare card issued in appellant's name and found with the ATM card confirmed this answer. (Supp.Tr. 6).

¶{30} On September 5, 2008, appellant filed a motion to suppress the ATM card. First, the motion argued that officers did not have permission to search appellant's residence just because they had consent to enter it. Second, the motion argued that Horace Landers had been immediately handcuffed and the jacket was outside of the room so there was no danger that he would retrieve a weapon so as to justify a search incident to arrest. The motion acknowledged that the coat could have been searched if Mr. Landers had asked to wear it to jail. After the above facts were elicited at a hearing, the trial court overruled appellant's motion to suppress the ATM card.

¶{31} Appellant acknowledges that he cannot assert the rights of Horace Landers as to the propriety of the arrest*fn1 but urges that he can assert the propriety of the officer's movement within his residence and the search and seizure of items within it. Appellant specifies that the police had consent to enter his apartment for the limited purpose of using the telephone but did not have consent to investigate the source of a noise. He insists that they were not acting under exigent circumstances which could justify their movement within his residence.

¶{32} If police were permitted to move to the bedroom to investigate, appellant argues that the seizure and search of the jacket does not fall under the search incident to arrest exception to the warrant requirement, claiming that it was not in the immediate control of Mr. Landers because it was outside of the room and because Mr. Landers had been handcuffed behind his back. As to the detective's intent to place the coat on Mr. Landers, appellant essentially argues that there is no "keep an arrestee warm" exception to the warrant requirement, at least where the arrestee does not indicate that he wants to wear the coat or that the coat belongs to him*fn2 . ¶{33} Appellate review of a suppression decision presents a mixed question of law and fact. State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, ¶100. On factual matters, the trial court occupies the best position to evaluate the credibility of witnesses and weigh the evidence. Id., citing State v. Mills (1992), 62 Ohio St.3d 357, 366. Thus, factual findings are accorded great deference. Id., citing State v. Fanning (1982), 1 Ohio St.3d 19, 20. The trial court's legal conclusions are reviewed de novo. Id., citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. ¶{34} Unreasonable searches and seizures are constitutionally prohibited. Ohio Const. Sec. 14, Art. I; U.S. Const. Amend. IV and XIV; Maryland v. Buie (1990), 494 U.S. 325, 331; State v. Robinette (1997), 80 Ohio St.3d 234, 238-239. For a search or seizure to be reasonable, it must be supported by a warrant or based upon an exception to the warrant requirement. Katz v. United States (1967), 389 U.S. 347, 357. Valid exceptions to the warrant requirement include: search of arrestee's immediate area incident to arrest; inventory search; consent; investigatory stop with protective search incident to arrest or incident to investigatory stop; hot pursuit; exigent circumstances; and plain view.

¶{35} The state has the burden to show voluntary consent by clear and positive evidence based on the totality of the circumstances. State v. Posey (1988), 40 Ohio St.3d 420, 427. See, also, State v. Barnes (1986), 25 Ohio St.3d 203, 208-209 (the standard is less strict than that required to show waiver of Fifth or Sixth Amendment rights as the waiver need not be knowing and intelligent). Consent to enter premises does not equate with consent to search the premises. Lakewood v. Smith (1965), 1 Ohio St.2d 128, 131. "A person who admits a police officer to his premises in compliance with the officer's request for an interview does not thereby waive his constitutional immunity from unreasonable searches, nor does he thereby consent to a search of the premises." Id. at ¶1 of syllabus.

¶{36} It is conceded that appellant voluntarily granted consent to enter his apartment to assist in a murder investigation and to allow the police to telephone the landlord. Before placing the call, they asked appellant questions about the victim and queried whether anyone else was home that may have information about the victim. Appellant answered in the negative in a mumbling voice. The police were then confronted with a crash sounding like a door hitting a wall, and appellant then contradictorily states, "I never told you he wasn't here." The content and timing of this statement suggests that the person in the backroom is the person the police are looking for in the victim's death.

¶{37} Considering that the upstairs neighbor was just discovered floating in the Mahoning River and that appellant (or someone else from that apartment) was a suspect in an attempted burglary at that neighbor's apartment just five days before, this set of circumstances would cause a reasonable officer to fear for their safety and would seem to justify glancing in the room from which the noise emanated in order to ascertain its occupant. See State v. Clark, 6th Dist. No. W-09-009, 2010-Ohio-2383, ¶27 (when a suspect of a violent crime gives officers consent to enter to speak with him and then he walks to bedroom to put on clothes, officers can permissibly follow him to ensure their safety).

¶{38} A Terry-type analysis may also be applied here. That is, the officers, who indisputably had valid consent to enter the residence (Apt. Br at 109), had reasonable suspicion to investigate what appellant knew about the victim's whereabouts. That is, he lived below the victim, who had just been found floating in the river with ligature marks, and he was a person of interest in the attempted burglary of the victim's apartment occurring a mere five days before her murder. Notably; there had been two attempts to gain entry into Ms. Tenney's apartment which occurred in the middle of the night while the victim was home sleeping, suggesting an intent to do more than merely steal. During their investigation of the victim's murder, the officers heard the crash of a door behind them when they were given the impression by appellant that he was alone. Appellant's statement after the noise was heard would further engender suspicion that a murderer was about to jump out of the bedroom.

¶{39} The totality of these circumstances created a reasonable suspicion, that a weapon could be used against them, which would allow the police to frisk appellant. Terry v. Ohio (1968), 392 U.S. 1, 29, 30. They can also conduct a protective search of a limited area for weapons. See Michigan v. Long (1983), 463 U.S. 1032, 1047 (Terry not limited to a frisk of the body of the person being investigated). Where the source of the officer's most immediate fear came from another direction, the permissible frisk zone increased to view the source of the noise in order to ensure officer safety during the investigation. See State v. Bobo (1988), 37 Ohio St.3d 177, 180-181 (police can sweep area around stopped individual to allow officer to conduct investigation in safety; allowing officer to search under stopped motorist's seat). Notably, officer safety is a special concern when in a suspect's house as compared to a public place. Maryland v. Buie (1990), 494 U.S. 325, 333. See, also, State v. Blackwell, 159 Ohio App.3d 790, 2005-Ohio-922, ¶11 (frisk after consent to enter to speak with suspect); State v. Lyons (1992), 83 Ohio App.3d 525, 533.

¶{40} In Buie, the defendant was arrested in his residence based upon an arrest warrant. Thereafter, officers conducted a protective sweep around the house to ensure dangerous individuals were not hiding. The United States Supreme Court extended Terry and Long to allow this protective visual sweep of the defendant's residence after the defendant's arrest. Maryland v. Buie (1990), 494 U.S. at 333. The court noted the officer's interest in ensuring the house was not harboring dangerous individuals who could unexpectedly ambush them and held that officers need merely a reasonable suspicion that the area may harbor a dangerous individual. Id. at 334, 337.

¶{41} Courts have permitted this protective sweep even where there is not an arrest when the police lawfully entered the residence. See, e.g., State v. Shaffer, 8th Dist. No. 93948 2010-Ohio-1744, ¶18-19, 21 (police lawfully entered to effect an arrest, but the intended target was not there); State v. Sutton, 7th Dist. No. 01-CA-181, 2002-Ohio-6901, ¶19 (officers entered apartment to ask questions with consent and then developed reasonable suspicion dangerous individuals might be hiding). See, also, U.S. v. Oguns (C.A.2, 1990), 921 F.2d 442, 446 (extending Buie's in-home arrest protective sweep doctrine to allow a protective sweep of a home even where the arrest occurs outside). Either way, the officers reasonably moved to the bedroom to investigate the source of the noise in order to ensure their safety.

¶{42} We next move to appellant's argument that the seizure and search of his jacket within his residence was unconstitutional. The search incident to arrest exception allows officers to conduct a search of an arrestee's person and the area within the arrestee's immediate control. State v. Smith, 124 Ohio St.3d 163, 2009- Ohio-6426, ¶11, citing Chimel v. California (1969), 395 U.S. 752, 762-763. The purpose of the search is to ensure officer safety and to preserve evidence. Id, citing Arizona v. Gant (2009), 556 U.S. 963.

¶{43} The area within an arrestee's immediate control means the area from within which he might gain possession of a weapon or destructible evidence or the area he might reach. Chimel, 395 U.S. at 763, 766. Although police cannot routinely search other rooms in a house after an arrest, police can, for instance, open a drawer located in front of an arrestee. Id.

¶{44} The reasonableness of a search incident to an arrest requires consideration of the totality of the facts and circumstances of each case. Id. at 765. However, the officer need not show that he had a specific fear in order to conduct a full custodial search. Robinson v. United States (1973), 414 U.S. 218, 235-236; State v. Matthews (1976), 46 Ohio St.2d 72, 74-75.

¶{45} This district has pointed out that the fact that an arrestee has been handcuffed does not terminate the applicability of the search incident to arrest exception. State v. Schwab, 7th Dist. No. 08MA78, 2009-Ohio-1312, ¶9, 21, citing United States v. Romero (C.A. 6 2006), 452 F.3d 610, 619-620 (as a search incident to arrest, officers could lawfully search a nightstand a couple feet from the defendant when he was arrested, despite the fact that he was restrained prior to the search). Other districts have held likewise. State v. White, 10th Dist. No. 01AP-246, 2007- Ohio-7143, ¶15-17 (officer can search refrigerator incident to arrest even after arrestee was handcuffed); State v. Johnson, 8th Dist. No. 82697, 2003-Ohio-6641, ¶11 (fact that defendant was handcuffed does not necessarily mean that he was incapable of using a weapon or other item to harm the deputies or that the area was otherwise safe); State v. Henderson, 12th Dist. No. CA2002-08-075, 2003-Ohio-1617, ¶14-16 (search of a shaving kit a "few feet away" from the defendant at the time of his arrest was constitutional, even though the defendant was handcuffed and lying on the floor when the search occurred). See, also, State v. Murrell (2002), 92 Ohio St.3d 492, 493-496 (applying the search incident to arrest exception to search passenger compartment of vehicle even where arrestee was secured in back of car in handcuffs), adopting New York v. Belton (1981), 453 U.S. 454, 460 (area in "immediate control" for search incident to arrest exception includes a jacket in the passenger compartment of a car.)

¶{46} Thus, that Horace Landers was handcuffed prior to the seizure and search of the coat did not contaminate the search incident to his arrest. Moreover, the fact that the jacket did not end up belonging to the arrestee does not invalidate the search as the test is merely whether the object searched was within the area within the arrestee's immediate control. See Chimel, 395 U.S. at 766. Under the totality of the facts and circumstances here, the search of the jacket incident to the arrest of Horace Landers was reasonable. See id.

¶{47} More specifically, the officers had just begun a murder investigation as they discovered the body of a nineteen-year-old college student floating in the river with ligature marks on her neck and wrists. Soon after securing the body, they proceeded to the murder victim's apartment and were invited to enter the neighbor's apartment to make a call. This neighbor was a suspect in two attempted burglaries of the victim's apartment while she slept just days before. They asked him standard questions about the victim and whether he or anyone else in the apartment noticed anything suspicious. Appellant indicated that the apartment was empty but for himself.

The officers then heard a crash like a door hitting a wall. Appellant cryptically mumbled that he never told them that "he wasn't here." The officer's then found a shirtless man with a warrant out for his arrest hiding in a bedroom. When asked, the arrestee indicated that his shirt was lying on the bed. It was winter in Youngstown, Ohio. The wanted man was three to four feet from a jacket lying on the floor just outside the open bedroom door.

¶{48} This was not a "routine" search of rooms other than that where the arrestee was found. See id. This was the winter-time seizure of a jacket lying three to four feet from the shirtless arrestee and said to be within his lunge area. Testimony established that the coat was within the arrestee's lunge area. The trial court could thus reasonably conclude that the jacket was within the arrestee's immediate control at the time of his arrest. See State v. Goss, 8th Dist. N. 91160, 2009-Ohio-1074, ¶3, 15 (jacket hanging "a few feet away" from defendant in store where he worked found to be in his immediate control); Romero, 452 F.3d at 619-620 (nightstand "a couple of feet" from the arrestee); Henderson, 11th Dist. No. CA2002-08-075 at ¶14 (shaving kit a "few feet away" from arrestee); State v. Miller (Dec. 1, 1983), 8th Dist. No. 46695 (jacket on chair three feet from arrestee).

¶{49} That is, the jacket was within the arrestee's immediate control as the arrest commenced, the arrestee still had access to it thereafter, and the search was done promptly after the handcuffs were placed on the arrestee. See Schwab, 7th Dist. No. 08MA78 at ¶9, 21; State v. Burnette (July 10, 1996), 1st Dist. No. C-950887 (police could search jacket lying on floor "near" arrestee); State v. Conklin (Mar. 27, 1995), Butler App. No. CA94-03-064 (police can search jacket hanging near arrestee that matched his pants). As such, the jacket was properly searched incident to the arrest of Horace Landers.*fn3

ASSIGNMENT OF ERROR NUMBER ELEVEN ¶{50} Appellant' eleventh assignment of error states:

¶{51} "APPELLANT'S PRIVILEGE AGAINST SELF-INCRIMINATION AND RIGHT TO COUNSEL WERE VIOLATED WHEN THE TRIAL COURT OVERRULED APPELLANT'S MOTION TO SUPPRESS EVIDENCE AND ADMITTED

STATEMENTS TAKEN IN VIOLATION OF MIRANDA V. ARIZONA AND EDWARDS V. ARIZONA [CITATIONS OMITTED]."

¶{52} Appellant unsuccessfully sought to suppress two statements he made to his probation officer. At the suppression hearing, a detective testified that he witnessed appellant signing a rights waiver sheet on December 30, 1985 and on December 31, 1985 while in jail. The detective was able to produce the signed waiver sheets at the suppression hearing. (Tr. 26, 28). Appellant made no statements to the detective, and he did not request an attorney. (Tr. 25-27, 29, 46-47).

¶{53} On December 30, 1985, appellant's probation officer visited him in jail to tell him that he was placing a hold on him. The probation officer testified that appellant signed a rights waiver. (Tr. 72). His notes memorialized that appellant signed this waiver and made a voluntary statement. He explained that he could not locate the signed waiver due to the routine destruction of older files. (Tr. 73, 79). Appellant's statement was not incriminating but merely recounted that he was arrested.

¶{54} On January 2, 1986, the probation officer visited appellant again and told him that he was still under the waiver of rights previously signed. (Tr. 84-85). His notes verify this testimony. Appellant explained that he found the victim's ATM card on the front porch steps at 11:30 a.m. on December 30, 1985 and he put it in his pocket when she did not answer her door. As the jury could find that this statement was a lie because witnesses testified that appellant used the ATM card the previous night, this statement is somewhat prejudicial.

¶{55} It is well-established that the state may not use statements obtained during a custodial interrogation of a defendant unless the police have used procedural safeguards to secure the defendant's Fifth Amendment right against self-incrimination. Miranda v. Arizona (1966), 384 U.S. 436, 444. To preserve this right, the defendant must be advised of his right to remain silent and to have legal counsel present at interrogation. Id. at 467-470.

¶{56} Initially, appellant cites law holding that if the suspect expresses a desire to speak only through counsel, there can be no further interrogation unless the defendant initiates conversation. See Edwards v. Arizona (1981), 451 U.S. 477, 484. He also states that the mere failure to request an attorney is not a waiver of the right to have an attorney present.

¶{57} However, these statements are inapplicable and incorrect respectively. Appellant's citation to Edwards is irrelevant as appellant did not specifically express a desire to speak only through counsel. Moreover, a suspect must invoke his right to counsel unambiguously. Davis v. United States (1994), 512 U.S. 452, 459. If he does not do so at all or does so only ambiguously, then he has not invoked his right. Id. As there is no indication at all that appellant referenced counsel after being advised of his rights, this argument is without merit.

¶{58} Appellant next argues that he invoked the right to remain silent by not providing a statement to the detective. He concludes that if he invoked his right to remain silent to the detective, then the probation officer was not permitted to seek a statement from him. Appellant then states that where a defendant does not speak, there can be no further interviews, citing Maryland v. Shatzer (2010), 130 S.Ct. 1213, 1219.

¶{59} Although Shatzer noted the law that interrogation must cease if a suspect indicates he wishes to invoke his right to remain silent, this is not the main point in Shatzer. Id., citing Miranda, 384 U.S. at 473-474. Rather, Shatzer dealt with a defendant who expressly invoked his right to counsel, not one who merely declined to speak. Moreover, the United States Supreme Court has even more recently held that a defendant does not invoke the right to remain silent by merely remaining silent. Berghuis v. Thompkins (2010), 130 S.Ct. 2250, 2260. Rather, the defendant must unambiguously express that he does not want to make a statement. Id. Otherwise, the police can continue questioning the defendant.

¶{60} Even prior to this, the Supreme Court had held that a defendant's silence, coupled with an understanding of his rights and a course of conduct indicating waiver, can support a conclusion that a defendant has waived his rights. North Carolina v. Butler (1979), 441 U.S. 373, 376. Courts were instructed to look at the particular facts and circumstances of each case, including the background, experience, and conduct of the defendant. Id. at 375.

¶{61} Furthermore, a suspect who receives adequate Miranda warnings prior to a custodial interrogation need not be warned again before each subsequent interrogation. State v. Treesh, 90 Ohio St.3d 460, 470 (upholding partial Miranda warnings after full Miranda at time of arrest), citing State v. Barnes (1986), 25 Ohio St.3d 203, 208 (incriminating statement made 24 hours after Miranda), State v. Brewer (1990), 48 Ohio St.3d 50 (Mirandizing by one police department in one day is sufficient to uphold incriminating statements made to another police department the next day even though defendant was not re-Mirandized). The court is to view the totality of the circumstances to determine whether prior Mirandizing remains valid for a subsequent interview. Treesh, 90 Ohio St.3d at 470, citing State v. Roberts (1987), 32 Ohio St.3d 225, 232.

¶{62} Here, the only evidence we have is that appellant originally refused to make a statement. This does not unambiguously show that he expressed that he was invoking his right to remain silent. Berghuis, 130 S.Ct. at 2260. Under the aforementioned case law, the fact that he did not make a statement when the detective asked him to on December 30*fn4 is not absolutely dispositive. It is part of the totality of the circumstances to be considered by the trial court.

¶{63} As the state points out, after a defendant fails to make a statement and questioning ceases, the defendant can be approached thereafter. See Michigan v. Mosley (1975), 423 U.S. 96, 104. Plus, appellant's other conduct can reasonably be seen as indicating waiver of his right to silence. Most notably, on the day of his arrest, he voluntarily spoke to his probation officer about the general sequence of arrest events. Three days later (and two days after he signed another waiver sheet), he then provided more explanation to his probation officer when asked about specific evidence.

¶{64} Along these lines, the failure to physically produce a rights waiver sheet signed for a probation officer more than twenty years prior would not require the suppression of a statement. In fact, even a refusal to sign a physical paper waiving rights does not equate with the lack of an actual waiver of rights. See State v. Scott (1980), 61 Ohio St.3d 155, 161. Rather, the waiver sheet is just one piece of evidence that can be used to show a valid waiver. See State v. Shakoor, 7th Dist. No 01CA121, 2003-Ohio-5140, ¶19. Thus, a lost rights waiver sheet is not dispositive.

¶{65} The probation officer testified that appellant was reminded of his prior waiver of rights and advised that the waiver was still in effect. As he had previously waived his rights to this officer, the reminder is an important feature of this case. See, e.g., State v. Anderson, 11th Dist. No. 2009-T-0041, 2010-Ohio-2291, ¶31 (defendant asked generally if he reaffirmed his rights), citing State v. Parrish, 2d Dist. No. 21091, 2006-Ohio-267; State v. Green (Jan. 15, 1993), 3d Dist. No. 2-92-6 (reminded of rights waiver from day before). Contrary to appellant's assertion, the probation officer's testimony, refreshed by his notes, was believable. The trial court could rationally conclude that appellant signed a form for this officer on December 30, 1985 and that he was advised on January 2, 1986 that he was still under the rights waiver.

¶{66} Moreover, whether appellant understood his rights was a factual matter best left to the trial court, whose decision is supported by the facts. See, e.g., State v. Mills (1992), 62 Ohio St .3d 357, 366. For instance, appellant was in his late-twenties. The probation officer testified that he knew appellant could read and write. (Tr. 71).

The fact that appellant signed three rights waiver forms in two days is a fact tending to show that his statement was voluntarily made two days after the last waiver where he was reminded of his prior waiver. Moreover, appellant had numerous prior experiences with the criminal justice system, including both arrests and convictions. Thus, contrary to appellant's claim, there is no indication that appellant's will was overborne by having his probation officer visit him twice after a detective briefly questioned him once and drew blood once. For all of these reasons, this assignment of error is overruled.

ASSIGNMENT OF ERROR NUMBER FIVE ¶{67} Appellant's fifth assignment of error contends:

¶{68} "APPELLANT WAS DENIED RIGHTS AND LIBERTIES PROTECTED BY [THE CONSTITUTION] [CITATIONS OMITTED] WHEN THE TRIAL COURT OVERRULED APPELLANT'S MOTION FOR DISCHARGE."

¶{69} On June 13, 2008, appellant filed a motion for discharge due to preindictment delay. He pointed out that the crime was committed on December 29, 1985, he was considered a suspect and arrested for receiving the victim's stolen property the next day, but he was not indicted until October 11, 2007, which is nearly twenty-two years after the crime. After the July 17, 2008 hearing, the trial court denied appellant's motion, finding no evidence of actual prejudice. The court heard the following timeline evidence from an investigating detective.

¶{70} Just before appellant's arrest, police found the victim's ATM card in appellant's jacket (along with his own welfare card). Just after his arrest, police found the victim's television in appellant's apartment. They found the victim's key chain containing the keys to her apartment and her car in appellant's bathroom wastebasket. They also found the victim's potholder in appellant's kitchen trash.

¶{71} In early January of 1986, police received bank records showing that the victim's ATM card had been used multiple times at a certain location around 9:30 p.m. on December 29, 1985. Police contacted other ATM users. Soon thereafter, a couple identified appellant as the person using the ATM at the same time they were at the bank, and the man identified the victim's vehicle as the car appellant was driving. On January 29, 1986, fingerprints on the television were matched to those of appellant.

¶{72} The victim's friends were questioned. She was last seen around 4:30 p.m. on December 29, 1985. She had expressed fear of appellant to the friend who saw her last and to her parents. (Hrg. Tr. 147). Appellant had previously given her a card that disturbed her, and he often asked to be invited to her apartment.

¶{73} Horace Landers gave two statements that incriminated the defendant regarding the television and the keys and that placed appellant wiping the stairs up to the victim's apartment with a potholder. (Hrg. Tr. 143, 169). On February 5, 1986, forensic analysis reported that red pubic and head hair consistent with the victim's was found on the potholder along with "Negroid" hairs. (Hrg. Tr. 159). ¶{74} Blood analysis returned on that same day concluded that the donor to the semen found on the victim was a Type B non-secretor, that appellant was also a Type B non-secretor, and that this combination was consistent with 4% of the black population. (Hrg. Tr. 159). The analysis excluded Horace Landers and the victim's boyfriend as the donors. The parties stipulated that a BCI employee would have testified that the state had a "great case" at the time "scientifically speaking." (Hrg. Tr. 218).

¶{75} The case against appellant for receiving stolen property was presented to the grand jury on February 21, 1986, and a no bill was returned on May 2, 1986. Appellant's girlfriend, Adena Fedelia, testified before the grand jury. She had been providing seemingly deceptive statements to the police concerning whether the victim's vehicle was at the apartment on the night of the murder.

¶{76} In 1989, with the advent of new DNA technology, the state submitted the forensic evidence to an out-of-state laboratory. However, the technology was new, and the state's evidence got weaker as the results showed that the DNA recovered from the semen was consistent with appellant's DNA and with 12% of the black population. (Hrg. Tr. 160-161, 173).

¶{77} Thereafter, STR DNA technology was on the rise. The parties have stipulated to the following. In 1995, some states were using STR DNA, but Ohio was not. In 1997, a scientist at Ohio's BCI began over two years of training in order to perform STR DNA testing. In late 1999, BCI issued its first results using this technology. In 2000, BCI got accredited to enter CODIS. In 2002, BCI started accepting more requests after the opening of a new facility. In 2004, the federal government started providing grants to BCI to run cold cases. (Hrg. Tr. 216-218).

¶{78} Testimony showed that when a new chief of police took office in 2006, cold cases were reviewed to see which ones could be retested. (Hrg. Tr. 162). In 2007, a new attorney general invited local police departments to send in DNA from cold cases to BCI for forensic testing. (Hrg. Tr. 164). The evidence in this case was submitted to BCI in mid-2007. In September, BCI reported that they could extract DNA from the vaginal and underwear swabs. However, new samples were needed from appellant.

¶{79} In order to receive his blood, a decision was made to arrest appellant and hope the DNA results matched. (Hrg. Tr. 165-166). He was arrested on October 4, 2007, and his blood was obtained pursuant to a search warrant. On October 11, 2007, the results came back showing that appellant was the donor of the semen, and he was indicted for the murder that same day. (Hrg. Tr. 167).

¶{80} At the hearing on the motion for discharge, appellant called a private detective to the stand. He stated that he was trying to find the victim's former roommates (prior to her taking up residence on Ohio Avenue). (Hrg. Tr. 121-122). He also stated that one hour before the hearing, the defense had provided him with four names (two of them only nicknames) representing witnesses who may be able to provide an alibi that appellant was at a party on December 29, 1985. (Hrg. Tr. 120).

The investigator testified that it would have been much easier to find these witnesses and to determine nicknames twenty-two years ago. (Hrg. Tr. 121).

¶{81} With this background, we now turn to the law on the subject of pre- indictment delay. A defendant's due process rights can be violated by pre-indictment delay under certain circumstances. United States v. Marion (1971), 404 U.S. 307, 324. The defendant has the initial burden to show that he was substantially and actually prejudiced due to the delay. State v. Whiting (1998), 84 Ohio St.3d 215, 217. If he can do so, the burden shifts to the state to produce evidence of a justifiable reason for the delay. Id. Thereafter, the due process inquiry weighs the reasons for the delay against the prejudice to the defendant. State v. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, ¶51, citing United States v. Lovasco (1977), 431 U.S. 783, 790.

¶{82} The determination of actual or substantial prejudice entails "a delicate judgment based on the circumstances of each case." Walls, 96 Ohio St.3d 437 at ¶52, quoting Marion, 404 U.S. at 325. The court must consider the evidence against the defendant as it exists at the time the indictment is filed to ascertain whether the delay actually prejudiced his trial. Walls, 96 Ohio St.3d 437 at ¶52; State v. Luck (1984), 15 Ohio St.3d 150, 154; Marion, 404 U.S. at 326. In demonstrating sufficient prejudice, the defendant must set forth examples of issues arising from the delay that could be considered more than merely "somewhat prejudicial." Walls, 96 Ohio St.3d 437 at ¶56, citing Lovasco, 431 U.S. at 796.

¶{83} In addition, the prejudice must not be merely speculative. Walls, 96 Ohio St.3d 437 at ¶56. The defendant cannot rely solely on the possibility of prejudice that is inherent in any extended delay that memories will dim, witnesses will become inaccessible, and evidence will be lost. Marion, 404 U.S. at 326. Thus, the mere fact that someone the defendant may have wished to call as a witness died during the delay does not establish prejudice. See, e.g., State v. Harris, 7th Dist. No. 08JE39, 2009-Ohio-6804, ¶27-28 (victim's aunt and victim's best friend both died during delay but any benefit to the defendant from their presence was mere speculation); State v. Christman (May 2, 1999), 7th Dist. No. 786 (mere fact that appellant's mother died during eleven-year delay is not prejudicial).

¶{84} In other words, speculation on the potential content of lost testimony is insufficient. Christman, 7th Dist. No. 786, citing United States v. Doerr (C.A.7, 1989), 886 F.2d 944, 964 (defendant must show exculpatory value of the lost testimony). Thus, in Luck, where the state presented a "confession" of the defendant stating that the victim attacked the defendant and was killed in the ensuing fight and where the defendant also stated that a now-deceased witness could confirm this version of events, actual prejudice was sufficiently established. Luck, 15 Ohio St.3d at 157-158.

¶{85} As for the reason for the delay, delay can be unjustifiable when the state intentionally tried to gain a tactical advantage over the defendant. Id. at 158. It can also be unjustifiable when the state, through negligence or error in judgment, effectively ceases the active investigation of the case but later decides to commence prosecution on the same evidence available at the time the active investigation ceased. Id. at 158 (length of the delay is a key factor in determining whether a delay caused by negligence or error in judgment is justifiable). The United States Supreme Court has stated that investigative delay is fundamentally unlike delay undertaken solely to gain tactical advantage over the defendant. Lovasco, 431 U.S. at 795. Both high courts have stated that the prosecution is not required to commence a prosecution merely because there is sufficient evidence to prove guilt beyond a reasonable doubt. Luck, 15 Ohio St.3d at 158, citing Lovasco, 431 U.S. at 792.

¶{86} In Luck, the Ohio Supreme Court found that fifteen years of pre- indictment delay was unjustifiable because the prosecution commenced its case without one shred of new evidence. Id. at 158-159. Later, in Walls, the Ohio Supreme Court found that thirteen years of pre-indictment delay was justifiable because the indictment occurred just months after new computer technology made it possible to match fingerprints from the scene to those of the defendant and because the state proceeded diligently after receiving the new evidence. Walls, 96 Ohio St.3d 437 at ¶56.

¶{87} We begin with appellant's allegations of prejudice. First, he points to a deceased witness: Horace Landers was murdered in May of 1988. (Tr. 144). He states that Landers was important because he was arrested in appellant's apartment at the same time as appellant and because Mrs. Allie initially picked him out of a line- up as being at the ATM. However, Landers was arrested due to an outstanding warrant, and Mrs. Allie recanted, explaining that she chose someone who was the opposite of the person she saw at the ATM because she was frightened to make a public identification. Moreover, to establish a claim of prejudice due to the unavailability of a witness, the defendant must identify the subject matter of that witness's testimony and must explain how the missing evidence impaired his defense. See, e.g., State v. Harris, 7th Dist. No. 08JE39, 2009-Ohio-6804, ¶27-28; State v. Robinson, 6th Dist. No. L-06-1182, 2008-Ohio-3498, ¶126; State v. McClutchen, 8th Dist. No. 81821, 2003-Ohio-4802, ¶13; State v. Christman (May 2, 1999), 7th Dist. No. 786. Appellant has failed to do this here.

¶{88} In fact, the statement provided by Landers incriminated appellant. Landers stated that in November, appellant had disclosed that he stole keys out of the upstairs neighbor's purse. Appellant had told him that he was going to break into the upstairs neighbor's apartment with her keys to steal her belongings and that he would lock the door behind himself. On the day after the murder, he saw appellant wiping down the stairs to the victim's apartment with a potholder that was later found to contain red pubic and head hair consistent with the victim and "Negroid" pubic and head hair. Landers also stated that when the police arrived, appellant asked him to throw away the keys and hide the television. The death of Landers served to exclude his incriminating statements from evidence, a great benefit to appellant. Moreover, it was appellant's DNA that matched the semen found on the victim, whereas Landers had been excluded as a donor soon after the murder.

¶{89} Appellant next complains that certain documents were lost. The first document affected his motion to suppress statements. Appellant made two statements to his probation officer. There was nothing incriminating about the first statement provided. In a second statement, appellant explained that he found the victim's ATM on the front porch step at 11:30 a.m. on December 30, 1985 and that he put it in his pocket because she did not answer her door. As this statement contradicts testimony that he used the victim's ATM the night before and contradicts with appellant's girlfriend's statement that he broke into the victim's apartment the morning after the murder, it can be seen as unfavorable to his defense. Appellant believes that his probation officer's inability to locate the Miranda rights waiver sheet (signed by appellant when he visited him in jail on December 30, 1985) was due to the passage of time and was prejudicial to his suppression motion.

¶{90} However, the probation officer testified that appellant signed a Miranda waiver prior to making his statement. (Tr. 72). The probation officer's past notes from the December 30, 1985 visit confirm that appellant signed a waiver of his rights and made a voluntary statement. His notes from the January 2, 1986 visit disclose that he reminded appellant of the rights waiver that he previously signed. ¶{91} As aforementioned, whether appellant read and understood his rights was a matter of credibility for the trial court at the suppression hearing. That he waived his right to remain silent was evident by the fact that he made a statement to his probation officer. It is also notable that the Miranda rights waiver sheets that appellant signed when questioned by police officers on December 30 and 31, 1985 were located by the police department. Finally, appellant did not claim that he refused to sign the sheet. Actual prejudice is not apparent.

¶{92} Another item appellant desired was the 1986 grand jury transcript from his receiving stolen property charge. A detective's note indicates that a court reporter was present at the February 21, 1986 grand jury proceeding. (Hrg. Tr. 157). A court reporter testified at the July 7, 2007 hearing that she could not locate grand jury transcripts or her stenographic notes for that prior case. (Hrg. Tr. 203-204). Appellant claims the he is prejudiced by not knowing what charges were submitted to the grand jury or who testified.

¶{93} However, it was established that appellant was arrested and arraigned for receiving stolen property and bound over to the grand jury. (Tr. 66). Due to this fact and the fact that the case ended in a no bill, the relevance of the exact charges submitted is not clear. In any event, the detective specifically testified that the receiving stolen property charge was no billed. (Tr. 157). Moreover, the detective's notes and testimony indicate that the probation officer, the victim's former boyfriend, and appellant's girlfriend were subpoenaed to testify before the grand jury. (Tr. 157). It is extremely unlikely that the testimony from the probation officer or the victim's former boyfriend could have benefited appellant's defense. His suggestions on this topic are pure speculation.

¶{94} As for the grand jury testimony of appellant's girlfriend, appellate counsel apparently did not notice that the state discovered on microfilm the girlfriend's grand jury testimony. The testimony was filed as an exhibit to a motion on July 22, 2008. Her testimony constituted a mere three pages. She stated that she lived with appellant on Ohio Avenue. She disclosed that she spoke to appellant on January 1, 1986 about the victim's ATM card. He told her that Horace Landers broke into the victim's apartment, probably by using a butter knife and that Horace hid the ATM card in appellant's jacket pocket. As her testimony was preserved and provided below, the argument concerning the lack of her grand jury testimony is without merit.

¶{95} Appellant then complains that the police were unable to find the results of a polygraph test administered to his girlfriend. The detective testified that they did not receive written reports from the examiner back then but were orally told the examiner's opinion, which the detective would then memorialize in his notes. (Tr. 146). The detective presumed that the department's polygraph examiner kept a technical print-out of the graphs produced in his records, but noted that they could not find the internal polygraph record from back then. (Tr. 151, 186-187).

¶{96} The detective's testimony and notes disclose that the girlfriend was deceptive regarding the victim's vehicle. (Tr. 148-149). His testimony explained that the issue was whether the victim's car was at the apartment when the girlfriend returned home. (Tr. 149). Other notes show that the girlfriend seemed to be attempting to protect and defend appellant. Appellant does not explain how the graphical print-out of his girlfriend's polygraph from 1986 would help his defense. As the state points out, polygraph results are inadmissible in the absence of stipulation, and there is no stipulation in this case. As such, there is no showing of prejudice.

¶{97} Next, appellant states that memories have faded. He first points to Detective Landers, who testified at a suppression hearing. Appellant states that this detective could not recall anything specific about his attempted interviews with appellant on December 30 or 31, 1985 and that he could not remember if he testified before the 1986 grand jury. Since appellant did not speak during either attempted interview, the existence of prejudice concerning these attempts is not apparent. Although the detective could not recall whether he testified before the 1986 grand jury, appellant does not state how the answer to this would have assisted his defense.

¶{98} Appellant then points to the testimony of the victim's mother, stating that she could not remember the victim's date of birth or where she went to college but could remember that the victim expressed fear of appellant. (Tr. 71). However, substantial prejudice is not apparent by the mother's inability to remember a birth date or a college name. Whether she could actually remember that the victim expressed fear of appellant is a pure credibility issue.

¶{99} Appellant then complains that he cannot remember the names of the witnesses who could have placed him at a party on December 29, 1985. However, the trial court was advised that the defense provided to its private investigator the full names of two potential alibi witnesses and the nicknames of two other potential alibi witnesses. Notably, these names were not provided to the investigator until an hour before the pre-indictment delay hearing, when the murder indictment had been pending for nine months. Whether these witnesses could be tracked was not known at the time of the hearing. There is also no indication that appellant ever knew the real names of two other acquaintances for whom he only provided nicknames. As the state pointed out, there was no indication that appellant consulted with his prior attorney who may have taken notes regarding a potential alibi since he was considered a suspect for the murder at the time of his receiving stolen property arrest. Finally, there is no indication that these witnesses would have testified that appellant was at the party during all relevant hours. In fact, one alibi witness listed by appellant as being at a party the night of the murder refuted appellant's claim that she saw him that night.

¶{100} Appellant concludes by arguing that the delay provided the state with a tactical advantage. The tactical advantage spoken of by the Supreme Court deals with intentionally delaying in order to gain a tactical advantage, not with the state delaying for some other reason and ending up receiving a tactical advantage. In any event, we proceed to address his final two concerns. First, he states that if he had been indicted and tried in 1986, then his convictions for rape, kidnapping, and aggravated robbery in another criminal case, 1986CR43, would not have existed. However, it is pure speculation that the Tenney murder case would have proceeded to trial before the Boardman rape case, a crime which took place prior to the murder of Gina Tenney. In fact, the trial court precluded the state from using the Boardman rape case as other acts evidence, and the defense raised the issue in the sentencing phase to show his rehabilitation while in prison on that offense.

¶{101} Lastly, appellant points out that the law on circumstantial evidence changed to his detriment during the delay. The prior law was that "circumstantial evidence relied upon to prove an essential element of a crime must be irreconcilable with any reasonable theory of an accused's innocence in order to support a finding of guilt." State v. Kulig (1974), 37 Ohio St.2d 157. This premise was overruled in 1991 when the Court stated that circumstantial evidence and direct evidence inherently possess the same probative value and therefore should be subjected to the same standard of proof. State v. Jenks (1991), 61 Ohio St.3d 259, 274 (the state need only prove its theory of the case beyond a reasonable doubt and no longer must disprove any reasonable theories of innocence offered by the defense).

¶{102} However, the Supreme Court has ruled that application of the Jenks ruling to offenses committed prior thereto does not violate the constitutional prohibition against ex post facto laws. State v. Webb (1994), 70 Ohio St.3d 325, 331. The Court noted in part that the new rule does not deprive one charged with a crime of a defense available according to law at the time when the act was committed. Id. The Court even stated that a case containing a judicially-created rule regarding the proof required at trial that overrules a prior case is essentially a holding that the prior case "never was the law." Id. As such, this change in the law is not the prejudice envisioned by the pre-indictment delay test. See Christman, 7th Dist. No. 786 (disposing of a similar argument).

¶{103} In reviewing the allegations of prejudice contained in appellant's brief, there does not appear to be actual or substantial prejudice to his defense. This is especially true considering the quantum of evidence presented against him at trial. He had the victim's ATM card in his pocket. He used the ATM card multiple times on December 29, 1985, hours after the victim was last seen. He drove her vehicle to the ATM machine. The keys to her car and apartment were found in a wastebasket in the apartment he stayed in with his girlfriend. The victim's television was found in the apartment with appellant's fingerprints on it. A potholder matching one found in the victim's apartment was found in appellant's apartment, and this item contained red pubic and head hair consistent with that of the victim and "Negroid" hair. The victim had ligature marks on her wrists and neck and her body was found in the Mahoning River. Appellant's DNA matched the semen found on the vaginal and underwear swabs of the victim. It was established that the victim would not willingly have had intercourse with appellant.

¶{104} Finally, there appears to be a justifiable reason for the delay. First, there is no allegation or indication that the delay was intentionally implemented by the state in order to gain a tactical advantage over the defendant. See Luck, 15 Ohio St.3d at 158. Second, there is no indication of negligence or error in judgment which caused the state to cease its active investigation and fail to seek an indictment prior to closing the case. See id. Third, the 2007 murder indictment was not commenced upon the same evidence available to the state at the time the active investigation ceased in 1986 (and again in 1989 when new DNA evidence negatively affected the state's case). See id.

¶{105} As to the second point, if the state could not get an indictment for receiving the victim's stolen property, then the prosecutor's use of discretion to forgo a murder indictment appears reasonable. This was a case of good faith investigative delay. See Lovasco, 431 U.S. at syllabus. A prosecutor has no duty to indict a suspect for murder merely because there is probable cause to arrest the suspect for murder. See id. at 791. A court cannot abort a criminal prosecution merely because it disagrees with a prosecutor's judgment as to whether to seek an indictment prior to the close of the active investigation. Id. at 790 (the determination of whether to indict early is seldom clear-cut, and reasonable people will often reach different conclusions).

¶{106} The closing of the case was not through negligence or error in judgment with a subsequent realization of a mistake resulting in an indictment based upon substantially the same evidence. See Christman, 7th Dist. No. 786. Just prior to the indictment, the state received the results of STR DNA that essentially conclusively established that appellant was the source of the semen elicited from the rape kit. This is a significant advance in identification.

¶{107} Back in 1986, the results of a blood serum analysis only showed that the semen was consistent with appellant and also with 4% of the black population. The 1989 DNA test provided the state with even less favorable scientific odds as it found the semen to be consistent with 12% of the black population.

¶{108} The parties' stipulations suggest that BCI could not have accommodated a request for the STR DNA testing until 2002 at the earliest. There is no indication that an indictment rendered closer to that time would have diminished any alleged prejudice. It is also noted that the attorney general specifically invited local agencies to submit DNA from cold cases to the BCI in 2007, which prompted the action here.

¶{109} In any event, although the state could have run the results sooner than 2007, the test for pre-indictment delay deals with negligence or error in judgment in ceasing the active investigation, not with a failure to reopen a properly closed case every time a new scientific technology is invented. See Luck, 15 Ohio St.3d at 158 ("through negligence or error in judgment, effectively ceases the active investigation of a case, but later decides to commence prosecution upon the same evidence that was available to it at the time that its active investigation was ceased"). At the time the active investigation was ceased, the prosecutor had sound reason to believe he may not be able to sufficiently prove his case. And, at the time the indictment was handed down, the state had discovered a substantial piece of new evidence proving that appellant was the source of the semen.

¶{110} As aforementioned, substantial prejudice was not established, and even if it had been, appellant's due process rights were not violated upon viewing the allegations of prejudice in light of the reasons for the delay. See id. at 154 (view prejudice in light of reasons for delay). See, also, Walls, 96 Ohio St.3d 437 at ¶51. This is not a case that violates the "fundamental conceptions of justice which lie at the base of our civil and political institutions" or that offend a "community's sense of fair play and decency." Lovasco, 431 U.S. at 790. As such, this assignment of error is overruled.

ASSIGNMENT OF ERROR NUMBER TWELVE ¶{111} Appellant's twelfth assignment of error alleges:

¶{112} "THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR DISCHARGE BASED UPON SPEEDY TRIAL IN VIOLATON OF LIBERTIES SECURED [THE CONSTITUTION AND THE SPEEDY TRIAL ACT] [CITATIONS OMITTED]."

¶{113} Appellant presents both statutory and constitutional speedy trial arguments here regarding post-accusation delay. We note that this argument is treated differently in the law than the above argument dealing with allegations of due process violations due to pre-indictment delay. We begin by analyzing his claim that his statutory right to speedy trial was violated.

¶{114} Appellant was arrested and incarcerated for aggravated murder on October 4, 2007. Being a felony, his speedy trial time expired after two hundred seventy days, not including any periods of tolling. See R.C. 2945.71(C)(2). As appellant acknowledges, he filed motions tolling his speedy trial time on October 29, 2007. He then waived his right to a speedy trial on November 5, 2007.

¶{115} Appellant calculates that seventy-five days were added to the speedy trial clock, using triple time from the day after his October 3, 2007 arrest until the day before he filed his tolling motions. See R.C. 2945.71(E) (each day during which the accused is held in jail in lieu of bail on the pending charge shall be counted as three days). In order to argue that his speedy trial rights were violated, he attempts to tack onto the clock more than two hundred fifty actual days*fn5 that he spent in jail from his December 30, 1985 arrest for receiving stolen property until a judgment entry memorializing a prior no bill was filed on September 12, 1986. He urges that this tacking is permissible because his 2007 arrest was based upon the same evidence existing at the time of his 1985 receiving stolen property arrest.

¶{116} The state first claims that even if the time appellant was held on the receiving stolen property charge could be tacked onto the current case, two hundred seventy days had not expired by the time of his October 29, 2007 tolling motions in the current case. By appellant's calculations, he needs one hundred ninety-five days from the old case in order for his argument to work. He can only reach this number by using the September 12, 1986 date of the entry journalizing the prior no bill. However, the receiving stolen property charge was no billed on May 2, 1986. The state points out that although the entry was not journalized until September of 1986, this was prior to the running of the statute of limitations in that case. The state suggests that since the entry was filed prior to the running of the statute of limitations, it could permissibly relate back to the May 2, 1986 actual no bill occurrence. See State v. Mincy (1982), 2 Ohio St.3d 6, 8-9 (sua sponte continuances permissible to toll statute of limitations if journalized prior to expiration of statute of limitations period); State v. Lee (1976), 48 Ohio St.2d 208; State v. Harris, 5th Dist. No., 06-CA-40, 2006-Ohio-5999, ¶3, 18 (entry giving reasons for continuance relates back to date continuance was actually granted as long as it was journalized prior to the expiration of the statute of limitations). ¶{117} It is also notable that a no bill is a grand jury report, not a court decision, even if the court later journalizes it. See State v. Alexander, 4th Dist. No. 08CA3221, 2009-Ohio-1401, ¶1-2 (no charge pending between no bill and later indictment even if court never made entry lifting bail conditions). Along these lines, the state suggests that appellant was not being held on the receiving stolen property charge after the May of 1986 no bill. In fact, it was established that he was being held on a probation violation in another case and on a separate multi-count indictment in yet another case. (July 17, 2008 Tr. 110).

¶{118} In any event, we conclude that the time elapsed on the receiving stolen property case cannot be utilized by appellant to add to the time elapsed on the murder case. In support, we review some cases addressing this issue of tacking time elapsed from one charge to another. In one case, the defendant was initially charged with having an unlawful concentration of alcohol on his breath while driving. State v. Adams (1989), 43 Ohio St.3d 67, 68. The state dismissed this charge. Thereafter, the state filed a second complaint charging the defendant with operating a motor vehicle while under the influence of alcohol. The Supreme Court noted that the same time period applied to both charges, holding:

¶{119} "When new and additional charges arise from the same facts as did the original charge and the state knew of such facts at the time of the initial indictment, the time within which trial is to begin on the additional charge is subject to the same statutory limitations period that is applied to the original charge." Id.

¶{120} Thus, the time elapsed during the prosecution on one indictment will not be counted toward a subsequent indictment if either: (1) the additional criminal charges arose from facts different than those relied upon for the original charge; or (2) the facts were the same but the state did not know of the facts at the time of the initial indictment. The Court reiterated this holding in Baker and stated that subsequently indicted crimes that are based on different facts do not arise from the same sequence of events for the purposes of speedy-trial computation. State v. Baker (1997), 78 Ohio St.3d 108, citing Adams, 43 Ohio St.3d 67, 68. See, also, State v. Parker, 113 Ohio St.3d 207, 2007-Ohio-1524, ¶20 (Baker and Adams stand for the proposition that "speedy-trial time is not tolled for the filing of later charges that arose from the facts of ...


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