Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Clinton

Supreme Court of Ohio

December 19, 2017

The State of Ohio, Appellee,
v.
Clinton, Appellant.

          Submitted May 2, 2017

          Appeal from the Court of Common Pleas of Erie County, No. 2012-CR-0383.

          Kevin J. Baxter, Erie County Prosecuting Attorney, and Mary Ann Barylski, Assistant Prosecuting Attorney; and Michael DeWine, Attorney General, and Thomas Madden, Stephen Maher, and Jocelyn K. Lowe, Assistant Attorneys General, for appellee.

          Timothy Young, Ohio Public Defender, and Kimberly Rigby, Elizabeth Arrick, and Jessica Carrico, Assistant Public Defenders, for appellant.

          O'Connor, C.J.

         {¶ 1} This is an appeal of right from aggravated-murder convictions and death sentences. An Erie County Common Pleas Court jury found appellant, Curtis Clinton, guilty of the aggravated murders of 23-year-old Heather Jackson and her two children, three-year-old C.J. and one-year-old W.J., as well as other offenses, and unanimously recommended a sentence of death. The trial court accepted the recommendation and sentenced Clinton accordingly.

         {¶ 2} We affirm Clinton's convictions and sentences.

          I. Trial Evidence

         {¶ 3} Evidence introduced at trial showed that Clinton raped 17-year-old E.S. on September 2, 2012, at his Sandusky apartment. Less than a week later, Clinton strangled Jackson, C.J., and W.J. in Jackson's Sandusky home. Forensic evidence also established that he raped C.J. at or about the time of her death.

         A. Rape of E.S.

         {¶ 4} Over the Labor Day weekend in 2012, E.S. visited her former neighbor, Mercedes Charlton. Clinton and Charlton were friends, but E.S. had never met Clinton. On Friday, August 31, Clinton picked up Charlton and E.S. and drove them to his apartment in Sandusky, where they spent the next few days.

         {¶ 5} On the evening of September 2, Clinton and E.S. went to a local bar, while Charlton remained at the apartment. Clinton tried to put his arm around E.S. at the bar, and she moved away from him. E.S. told Clinton that he made her feel uncomfortable and that she wanted to go home.

         {¶ 6} Around 3:00 a.m. on September 3, they returned to Clinton's apartment. E.S. tried to call her boyfriend to get a ride home, but he did not answer. She heard Clinton and Charlton arguing, and then Clinton and Charlton left the apartment. Clinton returned alone about 15 minutes later. E.S. was lying on the couch, and Clinton went over to her and started choking her. E.S. was able to twist away from him and stand up, but then he placed her in a headlock. E.S. said, "Please don't hurt me." He walked her to the bedroom and ordered her to remove her clothes and get on the bed. Clinton raped her vaginally and then choked her until she passed out. When E.S. woke up, Clinton raped her again. E.S. asked him to stop, but he refused.

         {¶ 7} Later Clinton allowed E.S. to dress, and he drove her home, where E.S. told her mother that she had been raped. E.S.'s parents took her to the hospital.

         {¶ 8} Lisa Dettling, a nurse at St. Vincent's Medical Center in Toledo who is trained in examining sexual-assault victims, examined E.S. E.S. reported that

          Clinton had raped her and described what had happened. Dettling observed redness on E.S.'s neck that was consistent with her having been choked.

         {¶ 9} The Ohio Bureau of Criminal Identification and Investigation ("BCI") conducted DNA testing of vaginal and anal swabs taken during E.S.'s exam. That testing identified a DNA profile consistent with Clinton's. The BCI report concluded that "the expected frequency of occurrence of the DNA profile from the sperm fraction of the vaginal swabs * * * and the anal swabs * * * is 1 in 5, 074, 000, 000, 000, 000, 000 unrelated individuals."

         B. Murder of Heather Jackson and Her Children

         {¶ 10} In September 2012, Jackson lived in Sandusky with C.J. and W.J. 1. Events on the Night of the Murders

         {¶ 11} Several of Jackson's friends visited her at her home on the night of Friday September 7 and into the next morning. Between 6:00 p.m. and 8:00 p.m., Justin Kromer and Jackson watched TV together, and then he went home. Joshua Case and Thomas Hanson arrived, separately, around 9:30 p.m. Hanson talked with Jackson and saw her two children on the couch and left around 10:00 p.m. Case spent much of the night at Jackson's. He had sexual intercourse with Jackson, but left around 1:00 a.m., when a friend, Billy Crawford, picked him up at Jackson's home.

         {¶ 12} Around 3:00 a.m., Kromer texted Jackson and asked if she was home. She replied, "Yeah. Why?" He texted back that he "want[ed] to hang out with" her, but she did not reply. Kromer called her a few times after that, but those calls went directly to voicemail.

         {¶ 13} Phone records showed that Jackson called Case at 3:05 a.m. However, Case later testified that he was "pretty intoxicated" at that time and did not remember that call.

         2. Bodies Discovered

         {¶ 14} At 2:30 p.m. on September 8, Danielle Sorrell, a close friend of Jackson, went to Jackson's residence, but left after no one answered her knock at the door. After receiving a voicemail from Jackson's mother indicating that Jackson was missing, Sorrell returned around 5:00 p.m. She found the doors locked, and again no one answered when she knocked. Sorrell opened a window and heard the TV, but saw no one, and eventually she left.

         {¶ 15} Around 7:30 p.m., Hanson and Dan Risner went to Jackson's house after hearing that she was missing. They knocked on the front door and no one answered. Risner went to the back porch, forced open the door, and entered the home. The men found Jackson's body in her bedroom. They left, and Risner called 9-1-1.

         {¶ 16} Sergeant Eric Graybill, a Sandusky police officer responded to Jackson's residence and entered the home. He found Jackson's body wedged between the box spring and mattress in her bedroom with a ligature around her neck. Police found the bodies of Jackson's two children behind stacked boxes inside a utility closet. Each victim had a ligature around the neck.

         3. Beginning of Murder Investigation

         {¶ 17} Police found no signs of forced entry at Jackson's home. They interviewed Kromer, Case, Crawford, Hanson, and others who were with Jackson on September 7 and 8. The phone records of these individuals and surveillance tapes from Firelands Hospital, which is so close to Jackson's home that its cameras recorded the outside of Jackson's home and the approaching street, helped eliminate these individuals as suspects.

         {¶ 18} Phone records showed that two of the last calls Jackson received on September 8 were from a phone number assigned to Clinton. One call was received at 3:00 a.m. and lasted 182 seconds. The second call, at 3:12 a.m., lasted 38 seconds. All of the calls to Jackson after that went to her voicemail or were unanswered.

         {¶ 19} The officer who reviewed the videos from Firelands Hospital testified that it showed a white Cadillac arriving at Jackson's home at 3:10 a.m. and departing at 4:16 a.m. on September 8. The Cadillac returned to Jackson's home at 4:20 a.m. and left a minute and a half later. Detective Ken Nixon, who had investigated the rape of E.S., knew that Clinton drove a white Cadillac. Nixon notified the other investigators and suggested that they start looking for Clinton.

         4. Clinton's Police Interview

         {¶ 20} On September 10, Nixon learned that Clinton had been admitted to Bellevue Hospital as a suicidal person. Nixon and Sergeant Newell went that morning to see Clinton at the hospital. Clinton, who was being discharged, agreed to go with them to the Sandusky police department.

         {¶ 21} At 11:06 a.m., Detective Gary Wichman conducted a videotaped interview of Clinton. Clinton acknowledged his Miranda rights and signed a waiver-of-rights form. Clinton said that he had heard that Jackson had been shot.

         {¶ 22} Clinton said that he had been seeing Jackson for five months and that they had had a sexual relationship. He said that Jackson had a lot of problems and sought his financial and emotional support, but that he did not know Jackson's children well. He first said that he had last seen Jackson on Thursday, September 6, when they talked, he gave her $328, and they had sex. He stated that on the evening of September 7, he had gone to see Charlton, who was in Clyde.

         {¶ 23} Wichman informed Clinton that phone records showed that he had talked to Jackson early Saturday morning, September 8. Clinton said he had had his days mixed up and that it had not been Thursday night but instead Friday night or early Saturday morning that he had last seen Jackson. He said he had not stayed long at her house; he had dropped the money off, and they had had sex. He said, "I did my thing and left." He was not sure what time he arrived home.

         {¶ 24} Clinton said that someone else must have gone to Jackson's house after he left. He said that while he was with Jackson, she mentioned that somebody had texted or called her and she seemed irritated.

         {¶ 25} Clinton said, "I didn't do nothing to her and no, I didn't do nothing to her kids so that's my statement." When informed that he was the last person to have had contact with Jackson, Clinton said, "I don't think so. I doubt it. I really doubt it." Clinton added, "If something happened, I don't remember it." He later repeated, "I ain't done nothing."

         5. Clinton's Phone Call with his Mother from Jail

         {¶ 26} Clinton was arrested and incarcerated in the county jail. On September 11, 2012, Clinton called his mother from the jail on a recorded phone line. Excerpts of that conversation were played during trial. Clinton told his mother that he was "confused" and wished that he had sought help. He also said, "You should know it would happen again. * * * Now it's even worse than before." Clinton stated, "I just lose it. * * * I don't know what it is." His mother responded, "I know. We all have that issue, but we have learned how to deal with it." She said, "[W]e should have really just forced you to go back to your medication." Clinton replied, "I thought I was just over it * * * I just wouldn't believe that shit would happen no more." Then Clinton said, "I'm going to go in there and plead guilty or whatever, and just let them do whatever * * *."

         6. Other Evidence Implicating Clinton

         {¶ 27} Police searched Clinton's car and apartment. In the car, they found Clinton's wallet, which contained his debit card. Receipts found in Clinton's living room documented two transactions using his debit card at an ATM less than a mile and a half from Jackson's home at 4:30 a.m. and 4:31 a.m. on Saturday, September 8. Security footage from the bank showed his car pulling up to the ATM at that time.

          7. Autopsy Results

         {¶ 28} Dr. Diana Scala-Barnett, deputy coroner for Lucas County, conducted the autopsies of the three victims. She concluded that Jackson died from ligature strangulation. She noted that Jackson's rectum was "more open than it normally is after death, " which she said indicated that "something was most likely introduced in there to keep it open like that" at or about the time of her death.

         {¶ 29} Dr. Scala-Barnett testified that both W.J. and C.J. also died from ligature strangulation. She noted that C.J.'s underwear was "rolled" up, indicating that the body had been redressed. C.J. also had a rectal dilation similar to her mother's, again indicating that something was in her rectum at "or about the time of death.

         8. DNA and Forensic Evidence

         {¶ 30} Julie Cox, a forensic scientist at BCI, testified that seminal fluid was detected on the anal swabs obtained from C.J. Cox also noticed a stain in C.J.'s underwear, so she cut a very small portion of that stained area for testing and determined that it contained a sperm cell.

         {¶ 31} Hallie Garofalo, a forensic scientist in the DNA unit at BCI, determined that there was a mixture of DNA on the anal swabs from C.J. The major DNA profile was consistent with C.J.'s and the minor profile was consistent with Clinton's, as was the Y-chromosome profile from that sample. Garofalo testified that the "combined expected frequency of occurrence of these DNA profiles"- from both DNA tests-"on the anal swabs is one in 120, 094, 500 unrelated individuals." The DNA found on the stain in C.J.'s underwear and on the swabs taken of C.J.'s ankles and left wrist was a mixture consistent with contributions from Clinton, Jackson, and C.J. The major DNA profile from the swab taken of C.J.'s left ankle was consistent with Clinton's DNA profile, and the expected frequency of occurrence of that DNA profile is 1 in 5, 074, 000, 000, 000, 000, 000 unrelated individuals.

         {¶ 32} Garofalo stated that the DNA profile obtained from the ligature on W.J. was a mixture consistent with contributions from Clinton, Jackson, and W.J. The proportion of the population that cannot be excluded as possible contributors to the mixture is 1 in 55, 930 unrelated individuals.

         {¶ 33} DNA found on Jackson's right wrist was a mixture consistent with contributions from Clinton and Jackson.

         II. Procedural History

         {¶ 34} The state charged Clinton with five counts of aggravated murder, three counts of rape, and one count of aggravated burglary. Count Three charged him with the aggravated murder of Jackson while committing a rape and/or aggravated burglary. Count Four charged him with the aggravated murder of C. J. while committing a rape, and Count Five charged him with the aggravated murder of C.J., a child under the age of 13. Count Seven charged him with the aggravated murder of W.J. while committing a rape and/or aggravated burglary, and Count Eight charged him with the aggravated murder of W.J., a child under the age of 13.

         {¶ 35} All the aggravated-murder counts contained death-penalty specifications for committing aggravated murder while committing or attempting to commit kidnapping, rape, aggravated arson, aggravated robbery, or aggravated burglary, R.C. 2929.04(A)(7), and for a course of conduct involving multiple murders, R.C. 2929.04(A)(5). Counts Four, Five, Seven, and Eight also contained a death-penalty specification for the murder of a child under the age of 13, R.C. 2929.04(A)(9).

         {¶ 36} Regarding the four additional counts, Count Six charged Clinton with the rape of C.J., Count Nine charged him with aggravated burglary, and Counts One and Two charged him with the rape of E.S.

         {¶ 37} Clinton pled not guilty to all the charges. The jury found Clinton guilty of all the charges and specifications, and it recommended that he be sentenced to death. The trial judge sentenced him to death on each of three of the counts of aggravated murder (two of the aggravated-murder counts were merged for sentencing). He was also sentenced to ten years for each count of raping E.S. The sentences for the crimes committed against E.S. were ordered to run concurrently with each other and consecutively to the sentences imposed for the aggravated-murder convictions. Clinton was also sentenced to life in prison without parole for the rape of C.J. and ten years for aggravated burglary. Those sentences were ordered to run concurrently with each other and with the other sentences imposed in the case.

         III. Issues on Appeal

         {¶ 38} Clinton appeals his convictions and sentence and raises 23 propositions of law. Many of the propositions are subject to a plain-error analysis because they allege errors to which Clinton's defense counsel failed to object at trial. We will address these propositions first, followed by the propositions raising claims of ineffective assistance of trial counsel. The issues raised in the remaining propositions will be addressed in the approximate order that they arose during trial.

         A. Plain-Error Issues

         {¶ 39} Clinton raises numerous objections on appeal that he did not raise at trial. We review these claims only for plain error. State v. Mammone, 139 Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, at ¶ 69. To prevail, Clinton must show that an error occurred, that the error was plain, and that but for the error, the outcome of the trial clearly would have been otherwise. Id., citing State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).

         {¶ 40} In numerous propositions, Clinton fails to show that plain error occurred. These include proposition of law No. V (prosecutor violated Clinton's due-process rights by authorizing the total consumption of DNA evidence without notifying the defense); proposition of law No. VI (pretrial publicity denied Clinton his right to fair trial by biasing jurors); proposition of law No. VII (trial court erred by failing to excuse prospective jurors based upon their connections to the police, other jurors, a witness, and an assistant prosecutor); proposition of law No. IX (trial court erred by admitting inflammatory crime-scene and autopsy photos during the guilt phase of trial); proposition of law No. X (trial court erred in admitting a portion of Clinton's videotaped statement to police); proposition of law No. XI (trial court improperly admitted opinion testimony from retired-detective Michael Clark); proposition of law No. XIII (Clinton's right to privileged attorney-client communications and due process were violated when his discussions with his counsel were broadcast over a closed-circuit video feed); proposition of law No. XIV (the prosecutor peremptorily challenged a prospective juror because of her race in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)); proposition of law No. XV (trial court erred by permitting improper testimony, made erroneous evidentiary rulings, and erred in overruling defense motions and objections); and proposition of law No. XVII (prosecutor committed misconduct during closing argument). In each of these instances, Clinton failed to prove that any of the alleged errors prejudiced him by affecting the outcome of the trial based on the overwhelming evidence of guilt, including DNA evidence. There was no plain error.

         B Ineffective-Assistance Allegations

         {¶ 41} Clinton's ineffective-assistance claims in proposition of law No. XVI also lack merit. Reversal of a conviction for ineffective assistance of counsel requires the defendant to show first that counsel's performance was deficient and second that the deficient performance prejudiced the defense, depriving the defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus. Specifically, Clinton alleges that his trial counsel (1) failed to present a complete defense through examination of the state's witnesses, (2) failed to ensure Clinton's waiver of the presentation of mitigation evidence was knowing and voluntary, (3) failed to ensure that Clinton was present at all critical proceedings, (4) failed to object to unqualified expert testimony, (5) failed to properly challenge and/or voir dire jurors, (6) failed to ensure that a cautionary instruction was provided to jurors, (7) failed to effectively argue for a change of venue, (8) failed to hire a forensic pathologist or DNA expert, (9) failed to object to the improper admission of photos, (10) failed to assist Clinton in preparing his unsworn statement, (11) failed to present Clinton's testimony in his case-in-chief, (12) failed to object to the admission of Clinton's involuntary statement, (13) failed to object to the admission of the recording of Clinton's phone call with his mother, (14) failed to request voir dire of spectators who may have overheard attorney-client conversations through a closed-circuit video-feed on the first day of Clinton's trial, (15) failed to object to the continuing presence of Jackson's brother, and its prejudicial impact on jurors, (16) failed to sufficiently argue that the trial court should have dismissed the rape count and specifications concerning CJ. and E.S. pursuant to Crim.R. 29, (17) failed to put on mitigating evidence, (18) failed to have a mitigation theory prior to voir dire, (19) failed to challenge inaccurate captions on video evidence, (20) failed to object to improper testimony by the coroner, (21) failed to object to improper victim-impact testimony, (22) failed to object to improper closing arguments, and (23) failed to object to court costs. Clinton also alleges cumulative ineffective assistance. We do not find that any of the alleged failures by Clinton's trial counsel resulted in prejudice that deprived Clinton of a fair trial, particularly given the overwhelming evidence of guilt.

         C. Pretrial Issues 1. Joinder

         {¶ 42} In proposition of law No. IV, Clinton argues that the trial court erred by failing to grant the defense's motion to sever the rape charges as to E.S. in Counts One and Two from the unrelated charges of aggravated murder, rape, and aggravated burglary as to Jackson, C.J., and W.J.

         {¶ 43} "Two or more offenses may be charged in the same indictment, information or complaint in a separate count for each offense if the offenses charged * * * are of the same or similar character." Crim.R. 8(A). Crim.R. 8(A) also allows the joinder of offenses that "are based on the same act or transaction, or are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan, or are part of a course of criminal conduct." Permitting joinder "conserves resources by avoiding duplication inherent in multiple trials and minimizes the possibility of incongruous results that occur in successive trials before different juries." State v. Hamblin, 37 Ohio St.3d 153, 157-158, 524 N.E.2d 476 (1988).

         {¶ 44} "Notwithstanding the policy in favor of joinder, " Crim.R. 14 permits a defendant to request severance of the counts in an indictment "on the grounds that he or she is prejudiced by the joinder of multiple offenses." State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 49. The defendant "has the burden of furnishing the trial court with sufficient information so that it can weigh the considerations favoring joinder against the defendant's right to a fair trial." Torres at 343. But even if the equities appear to support severance, the state can overcome a defendant's claim of prejudicial joinder by showing either that (1) it could have introduced evidence of the joined offenses as "other acts" under Evid.R. 404(B) or (2) the "evidence of each crime joined at trial is simple and direct." Lott at 163.

         {¶ 45} In his motion for severance, Clinton argued that if the state proved the charges alleging that Clinton raped E.S., the jury would likely find that he also raped C.J. Clinton also argued that the jury might use the allegations that he had raped E.S. as nonstatutory aggravating factors in determining whether to recommend imposing the death penalty. In response, the state argued that joinder was proper because evidence of the rape of E.S. was admissible to help prove the identity of the person who murdered Jackson and her two children, as a similar modus operandi was used in the crimes. The trial court denied the motion, finding that joinder did not pose a "significant risk of prejudice."

         {¶ 46} We review a trial court's ruling on a Crim.R. 14 motion for an abuse of discretion. State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, ¶ 166. A defendant who appeals the denial of relief bears a heavy burden:

He must affirmatively demonstrate (1) that his rights were prejudiced, (2) that at the time of the motion to sever he provided the trial court with sufficient information so that it could weigh the considerations favoring joinder against the defendant's right to a fair trial, and (3) that given the information provided to the court, it abused its discretion in refusing to separate the charges for trial.

State v. Schaim, 65 Ohio St.3d 51, 59, 600 N.E.2d 661 (1992). "Abuse of discretion" has been defined as an attitude that is unreasonable, arbitrary, or unconscionable. Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d 1248 (1985), citing State v. Adams, 62 Ohio St.2d 151, 157-158, 404 N.E.2d 144 (1980). "A decision is unreasonable if there is no sound reasoning process that would support that decision." AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).

         {¶ 47} Clinton fails to show that "no sound reasoning process" could support joinder, and thus, he does not establish that the trial court abused its discretion.

         {¶ 48} First, the trial court could reasonably have found that the evidence as to Clinton's rape of E.S. was simple and direct. E.S. met Clinton through a friend and was able to identify him as her assailant. She testified that he started choking her when they were alone in his apartment. He then ordered her to remove her clothes, repeatedly raped her, and then started choking her again until she lost consciousness. Nurse Dettling examined E.S. the next day and observed injuries to her neck that were consistent with her description of the attack. In addition, DNA evidence established Clinton's identity as E.S.'s assailant. See State v. Franklin, 62 Ohio St.3d 118, 122-123, 580 N.E.2d 1 (1991).

         {¶ 49} Second, it was not unreasonable for the court to find that evidence of the E.S. rape would have been admissible under Evid.R. 404(B) as other-acts evidence that could prove the identity of the perpetrator of the crimes against the Jackson family. "To be admissible to prove identity through a certain modus operand, other-acts evidence must be related to and share common features with the crime in question." State v. Lowe, 69 Ohio St.3d 527, 634 N.E.2d 616 (1994), paragraph one of the syllabus.

         {¶ 50} E.S. and C.J. were raped, and all four victims were choked. See State v. Coley, 93 Ohio St.3d 253, 259-261, 754 N.E.2d 1129 (2001); State v. Benner, 40 Ohio St.3d 301, 306, 533 N.E.2d 701 (1988). The rapes of E.S. and the murder of the Jacksons occurred less than a week apart in Sandusky and involved an assailant driving a white Cadillac. Although the crimes differed in some respects, "[a]dmissibility is not adversely affected simply because the other [crimes] differed in some details." State v. Jamison, 49 Ohio St.3d 182, 187, 552 N.E.2d 180 (1990).

         {¶ 51} Clinton argues that joinder of the rape charges in relation to E.S. with the aggravated-murder charges constituted an improper intermingling of the charges that confused the jury and was highly prejudicial during both phases of the trial.

         {¶ 52} We are not persuaded by this argument. The jury is capable of segregating the proof of multiple charges when, as in the present case, the evidence of each crime is uncomplicated. See Hamblin, 37 Ohio St.3d at 159, 542 N.E.2d 476. Moreover, the court, not the jury, sentenced Clinton for the convictions for raping E.S. And the trial court's sentencing instructions cautioned the jury:

Some of the evidence and testimony that you considered in the trial phase of this case may not be considered in the sentencing phase.
For purposes of this proceeding, you are to consider only the evidence admitted in the trial phase that is relevant to the aggravating circumstances of which the Defendant has been found guilty and to any of the mitigating factors.

         A jury is presumed to follow the instructions given to it by the trial judge. See State v. Garner, 74 Ohio St.3d 49, 59, 656 N.E.2d 623 (1995). Thus, we reject Clinton's claim that he was prejudiced during sentencing by evidence that the jury was instructed not to consider.

         {¶ 53} Finally, Clinton argues that the joinder of charges took away his right to testify on his own behalf in the E.S. case once he decided that he did not want to testify in the Jackson case. Clinton argues that he was prejudiced because he was unable to testify that the sex with E.S. was consensual.

         {¶ 54} In State v. Roberts, 62 Ohio St.2d 170, 176, 405 N.E.2d 247 (1980), we held:

To prevail upon this issue, defendant must make a convincing showing that he has important testimony to give concerning one cause, and a strong need to refrain from testifying in the other. Defendant must produce sufficient information regarding the nature of the testimony he wishes to give in the one case, and his reasons for not wishing to testify in the other, so as to satisfy the court that his claim of prejudice is genuine.

See also State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80');">54 N.E.3d 80, ¶ 66 ("a defendant's mere desire to testify to only one count is an insufficient reason to require severance").

         {¶ 55} Clinton has failed to present convincing reasons for his argument that he might have chosen to testify in one case but not in the other. Thus, he has not shown that he was prejudiced, as required by Crim.R. 14, or that he satisfies the standard laid out in Roberts.

         {¶ 56} And to the extent that Clinton implies he would have argued that he did not commit rape because E.S. consented to the encounter, he would have put his intent at issue. State v. Gardner, 59 Ohio St.2d 14, 20, 391 N.E.2d 337 (1979). Under R.C. 2945.59, other acts, such as the rape of C.J., are admissible to establish intent if they " 'have such a temporal, modal and situational relationship with the acts constituting the crime charged that evidence of the other acts discloses purposeful action in the commission of the offense in question.' " Id., quoting State v. Burson, 38 Ohio St.2d 157, 159, 311 N.E.2d 526 (1974). As explained above, the rapes share enough common features to make it reasonable to admit evidence related to the rape of C.J. to show that Clinton intended to rape E.S.

         {¶ 57} Based on the foregoing, we reject proposition of law No. IV.

         2. Venue

         {¶ 58} In proposition of law No. VI, Clinton argues that the trial court violated his rights to due process and a fair trial by denying his motion for a change of venue.

         {¶ 59} Trial courts have a "duty to protect" criminal defendants from "inherently prejudicial publicity" that renders a jury's deliberations unfair. Sheppard v. Maxwell, 384 U.S. 333, 363, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). Even so, "pretrial publicity-even pervasive, adverse publicity-does not inevitably lead to an unfair trial." Nebraska Press Assn. v. Stuart, 427 U.S. 539, 554, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976). "[T]he best test of whether prejudicial pretrial publicity has prevented obtaining a fair and impartial jury from the locality" is "a careful and searching voir dire." State v. Bayless, 48 Ohio St.2d 73, 98, 357 N.E.2d 1035 (1976).

         {¶ 60} Decisions about whether to order a change of venue rest " 'largely in the discretion of the trial court.' " State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-Ohio-4751, 23 N.E.3d 1096, ¶ 91, quoting State v. Fairbanks, 32 Ohio St.2d 34, 37, 289 N.E.2d 352 (1972). We will not reverse a trial court's venue ruling "unless it is clearly shown that the trial court has abused its discretion." Fairbanks at 37. An abuse of discretion is more than a mere error of law or judgment; instead, it implies that a trial court's decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

         a. Motion for change of venue

         {¶ 61} Clinton moved for a change of venue, arguing that extensive media coverage had saturated the county at the time of the offenses and was likely to resume once the trial started.

         {¶ 62} Before voir dire began, the prospective jurors completed a 14-page jury questionnaire. Both the trial court and counsel individually questioned each prospective juror about their exposure to pretrial publicity and their attitudes about the death penalty. Individual voir dire lasted for seven days and resulted in over 2, 000 pages of transcript.

         {¶ 63} The trial court denied the motion for a change of venue. The court rejected claims of presumed prejudice, stating, "While in the present case the pretrial publicity is extensive and adverse to the defendant, the publicity is not sufficiently prejudicial that readers and viewers could not realistically shut it from sight." The court also rejected claims of actual prejudice stating, "The Court has qualified 72 prospective jurors on the issue of pretrial publicity and capital punishment. Thus, at this time the Defendant cannot demonstrate actual prejudice."

         b. No presumed bias

         {¶ 64} Clinton urges this court to presume prejudice because of the extent of the publicity. The Supreme Court has held that in certain rare cases, pretrial publicity is so damaging that courts must presume prejudice even without a showing of actual bias. See, e.g., Sheppard, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600. But this presumption "attends only the extreme case." Skilling v. United States, 561 U.S. 358, 381, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010); see also State v. Treesh, 90 Ohio St.3d 460, 464, 739 N.E.2d 749 (2001).

         {¶ 65} To prevail on a claim of presumed prejudice, a defendant must make " 'a clear and manifest showing * * * that pretrial publicity was so pervasive and prejudicial that an attempt to seat a jury would be a vain act.' " State v. Warner, 55 Ohio St.3d 31, 46, 564 N.E.2d 18 (1990), quoting State v. Herring 21 Ohio App.3d 18, 486 N.E.2d 119 (9th Dist.1984), syllabus.

         {¶ 66} Clinton argues that the extensive pretrial publicity surrounding the murders of Jackson and her children made it impossible for him to obtain a fair trial in Erie County. But the trial court was very conscious of pretrial publicity in Clinton's case. Each potential juror completed an extensive publicity questionnaire, and the court permitted thorough questioning about pretrial publicity during individual voir dire. Although most prospective jurors had heard or read something about the facts of the case, knowing something about media accounts of the crimes is not dispositive. See Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, at ¶ 102.

         {¶ 67} Jurors need not be totally ignorant about the facts of a case. See Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). The trial court excused 24 prospective jurors because they knew too much about the murders, or believed that Clinton was guilty. These excusals support the conclusion that the court ensured that Clinton's jury would not be unfair or biased. See Thompson at ¶ 102.

         {¶ 68} Clinton also argues that the emergence of social media has made pretrial publicity far more pervasive and prejudicial. But the trial court rejected claims that Clinton was prejudiced by online news reports, noting, "[R]esidents from all counties in Ohio may access these sources and post comments. Thus, this court is unable to determine how many residents from only Erie County have accessed these online sources and posted comments." Moreover, nothing in the record supports Clinton's claim that pervasive pretrial publicity from online sources and social media prejudiced him.

         {¶ 69} Finally, Clinton analogizes the facts of his case to those in other cases in which the United States Supreme Court has presumed prejudice. See Sheppard, 384 U.S. at 358, 86 S.Ct. 1507, 16 L.Ed.2d 600 (murder conviction overturned because a "carnival atmosphere" pervaded the trial); Rideau v. Louisiana, 373 U.S. 723, 724, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963) (defendant's confession was viewed on television by audiences of 20, 000 to 53, 000 people in a total population of 150, 000 three times within weeks of his arraignment); Irvin, 366 U.S at 727, 81 S.Ct. 1639, 6 L.Ed.2d 751 (90 percent of prospective jurors "entertained some opinion as to guilt, " and "[8] out of the 12 [jurors] thought [Irvin] was guilty"). But the publicity in this case did not begin to approach the level of pervasive influence present in those extraordinary cases. See also State v. Mammone, 139 Ohio St.3d 467, 2014-Ohio-1942, 13 N.E3d 1051, at ¶ 60-68. Thus, Clinton fails to demonstrate that this is the rare case in which we must presume prejudice.

         3. Other Juror-Bias Claims

         {¶ 70} In proposition of law No. VIII, Clinton argues that the trial court erred in overruling a timely challenge against prospective juror No. 363 after that prospective juror stated in the presence of other prospective jurors that he had heard that the defendant had admitted his guilt. He also argues that the trial court erred in overruling a challenge for bias against prospective jurors Nos. 73 and 22, causing defense counsel to use peremptory challenges to remove them.

         a. Prospective juror No. 363

         {¶ 71} During individual voir dire, prospective juror No. 363 stated that he had "heard from other people" that the defendant had admitted committing the offenses. He added, "If he admitted to doing so, then I believe he would be telling the truth, so I would think he would be guilty." He also stated, "Just last night. I actually read a petition from the family and * * * some brief things." During defense questioning, prospective juror No. 363 said that he had talked about the case with another prospective juror. When asked what had been discussed, he said, "Just what we were doing here, and [what] I read in the paper about the petition." He said their discussion had turned away from what had happened and more toward how long the trial was going to take.

         {¶ 72} At the conclusion of the individual voir dire of prospective juror No. 363, defense counsel challenged this prospective juror for cause based on his inability to apply the presumption of innocence and fairly consider the mitigating factors. The trial court denied this challenge, stating:

I think this juror was a great juror for both sides. He was very honest. He said he could follow the instructions of law. He said he could formulate his opinion based on his own beliefs. He said he could apply the instructions of law to the facts of this case.

         {¶ 73} Later, during general voir dire, defense counsel pressed prospective juror No. 363 about his ability to be a fair and impartial juror. Prospective juror No. 363 stated that he had worked with Jackson five or six years prior to the trial but that nothing about their acquaintance would affect his ability to be fair and impartial. During further questioning, prospective juror No. 363 admitted that he would have a difficult time being open-minded because he had "heard * * * people say" that Clinton had admitted his guilt. Thereafter, Clinton's trial counsel renewed his challenge for cause against prospective juror No. 363. The trial court granted the challenge and excused him.

         {¶ 74} Clinton argues that the trial court erred by not granting his initial challenge for cause against prospective juror No. 363. A trial court has broad discretion in determining a juror's ability to be impartial. State v. White, 82 Ohio St.3d 16, 20, 693 N.E.2d 772 (1998). "Thus, where a prospective juror is being challenged for bias, 'deference must be paid to the trial judge who sees and hears the juror.' " Id., quoting Wainwright, 469 U.S. at 426, 105 S.Ct. 844, 83 L.Ed.2d 841.

         {¶ 75} But Clinton has failed to demonstrate that the trial court abused its discretion in denying the initial challenge for cause against prospective juror No. 363. This juror stated that he could decide the case based on the evidence presented in court and follow the court's instructions. He also said that he could consider any mitigating evidence before rendering a sentence. The trial court had the benefit of observing prospective juror No. 363's demeanor and body language in listening to his answers. The trial court fairly determined, "I thought he was very, very honest, and said, 'Yeah, I really don't want to do this, but I'll do it if I have to.' "

         {¶ 76} Even though prospective juror No. 363 was later excused, Clinton argues that he tainted the jury pool during general voir dire by stating that he had heard that the defendant had admitted his guilt. But Clinton cites nothing in the record to demonstrate that these remarks biased or prejudiced the empaneled jurors. Generally, prejudicial effect is not presumed, but must be affirmatively shown on the record. See Treesh, 90 Ohio St.3d at 464, 739 N.E.2d 749; State v. Hairston, 4th Dist. Scioto, No. 06CA3087, 2007-Ohio-4159, ¶ 14.

          {¶ 77} In addition, the jurors were instructed that they were to consider only the evidence presented at trial. Specifically, the trial court instructed the jurors: "You must consider and decide this case only upon the evidence, again, that you receive in this courtroom. If you acquire any information from an outside source, you must not-you must not report it to other jurors and you must disregard it in your deliberations." Under these circumstances, no error occurred. See State v. Feagin, 5th Dist. Richland No. 05 CA 1, 2006-Ohio-676, ¶ 26.

         b. Prospective juror No. 73

         {¶ 78} Clinton argues that the trial court erred in denying a challenge for cause against prospective juror No. 73, forcing defense counsel to use a peremptory challenge to excuse her.

         {¶ 79} During individual voir dire, prospective juror No. 73 stated that she knew some of the victims' family members, and one of Jackson's best friends. But she stated, "It's not a close relationship." She was also familiar with Clinton, who had worked at the same delicatessen as her friend. Prospective juror No. 73 said she had never spoken to Clinton, but that her friend had reported to her that Clinton had attempted to "hit on" her. The friend had described Clinton as "weird" and a "creepy guy."

         {¶ 80} During further questioning, prospective juror No. 73 stated that she would be able to follow the court's instructions and base her decisions only on what she heard in court. When asked whether she would most rely on what she heard in court or what she had heard outside of court, juror No. 73 said, "Probably what I heard in the court." But she immediately clarified that she would follow the court's instructions.

         {¶ 81} Defense counsel challenged prospective juror No. 73 for cause because she knew one of Jackson's friends and some of her family members and she thought Clinton was "creepy." The trial court overruled the challenge, stating:

The "creepy word"-I have a daughter that's in her almost mid 20s. That's a word that girls use when-it's no offense, I don't think, to Mr. Clinton as a man. I mean * * * it's just maybe they don't like the guy and they go, "Oh, he's creepy. I don't want anything to do with that guy."
So I don't know that that's a basis for a challenge for cause.

         {¶ 82} Later, during general voir dire, both parties again questioned prospective juror No. 73 about her relationship with the victims' family. Prospective juror No. 73 stated that she had known Jackson's brother when she was ten years old. She also knew three potential witnesses: Jeremy Griggs (they went to school together), Josh Case (she knew him but had not seen him in years), and Detective Nixon (he is acquainted with her son's grandfather).

         {¶ 83} At sidebar, defense counsel stated that prospective juror No. 73 was "Facebook friends" with Jackson's brother. He added, "I want to go and ask her particularly about that, because it's Heather's brother."

         {¶ 84} Prospective juror No. 73 was questioned in chambers about her relationship with Jackson's brother. She said, "We never said anything to each other. Never wrote on each other's page. Never sent each other a special message." Yet she acknowledged having read Jackson's brother's comments about the case on Facebook and stated, "The only thing * * * I seen a couple times where they had posted like support for the family and stuff like that." She added that Jackson's brother's postings would not affect her view of the evidence. She said her views about Jackson's brother were neutral. Defense counsel did not challenge prospective juror No. 73 following this questioning.

         {¶ 85} Upon returning to the courtroom, defense counsel asked prospective juror No. 73 two questions about DNA evidence. Defense counsel then stated, "All right. I have no further questions. Pass for cause." Defense counsel later peremptorily challenged this prospective juror.

         {¶ 86} Clinton argues that the trial court erred in denying a defense challenge for cause against prospective juror No. 73, because this juror knew Clinton well enough to form an opinion that he was "creepy." But the prospective juror's use of the word "creepy" was framed by defense counsel's questions. He presented two options to prospective juror No. 73 in asking whether her friend thought that Clinton was a "cute guy" or a "creepy guy." Her response does not establish that she had a preconceived opinion about Clinton's ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.