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State v. Shearer

Court of Appeals of Ohio, Twelfth District, Butler

April 30, 2018

STATE OF OHIO, Plaintiff-Appellee,
v.
DAWN RACHEL SHEARER, Defendant-Appellant.

          CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2017-03-0367

          Michael T. Gmoser, Butler County Prosecuting Attorney, Willa Concannon, for plaintiff-appellee

          Mary K. Martin, for defendant-appellant

          OPINION

          S. POWELL, P.J.

         {¶ 1} Defendant-appellant, Dawn Rachel Shearer ("Shearer"), appeals from her conviction in the Butler County Court of Common Pleas after a jury found her guilty of murdering her ex-husband, Anthony Shearer ("Tony"). For the reasons outlined below, we affirm.

         The Arrest of Shearer

         {¶ 2} On the evening of February 6, 2017, Shearer was arrested for the murder of Tony and transported to the Butler County Jail. Once there, Shearer confessed to detectives to shooting Tony in the head. Two days later, on February 8, 2017, Shearer appeared at her arraignment and entered a plea of not guilty. Thereafter, on March 3, 2017, a preliminary hearing was held before the Middletown Municipal Court. Following this hearing, the matter was bound over to the Butler County Grand Jury and bond was set at $250, 000. It is undisputed that Shearer did not post bond, thereby remaining in the Butler County Jail at all times relevant.

         The Indictment and Pretrial Proceedings

         {¶ 3} On April 5, 2017, the Butler County Grand Jury returned a four-count indictment charging Shearer with two counts of murder in violation of R.C. 2903.02(B), both unclassified felonies, as well as two counts of felonious assault in violation of R.C. 2903.11(A)(1) and (2), both second-degree felonies. Each of the four counts also included a firearm specification as provided by R.C. 2941.145. According to the bill of particulars, the charges arose after it was alleged Shearer shot and killed Tony on the evening of February 6, 2017 while the two were at the house located at 3601 Ellis Way, Middletown, Butler County, Ohio. The matter was subsequently scheduled for trial on April 24, 2017.

         {¶ 4} On April 13, 2017, Shearer filed a motion requesting the matter be tried to a jury. That same day, Shearer's trial counsel filed a notice indicating his intent to use experts at trial, including, among others, Dr. Kenneth Manges, a forensic psychologist, and Dr. Harry Plotnick, a forensic toxicologist. Later that day, the trial court issued an entry granting Dr. Manges access to Shearer while she was in the Butler County Jail for purposes of conducting a forensic interview "so that he may have the opportunity [to] testify in her trial as an expert witness." Shortly thereafter, on April 17, 2017, Shearer's trial counsel provided the state with a report Dr. Manges compiled following his interview with Shearer. It is undisputed, however, that the report submitted by Dr. Manges specifically stated the "interview and evaluation process [was] not complete."

         {¶ 5} Beginning on April 14, 2017, the state filed a series of motions requesting the trial court exclude from trial any evidence regarding battered-woman's syndrome and posttraumatic stress disorder, as well as any evidence regarding Shearer's own mental health and/or diminished capacity. The state also moved the trial court to prohibit both Dr. Manges and Dr. Plotnick from testifying at trial since Shearer failed to comply with the timing requirements of Crim.R. 16(K). Pursuant to that rule,

An expert witness for either side shall prepare a written report summarizing the expert witness's testimony, findings, analysis, conclusions, or opinion, and shall include a summary of the expert's qualifications. The written report and summary of qualifications shall be subject to disclosure under this rule no later than twenty-one days prior to trial, which period may be modified by the court for good cause shown, which does not prejudice any other party. Failure to disclose the written report to opposing counsel shall preclude the expert's testimony at trial.

         {¶ 6} On April 20, 2017, the trial court held a pretrial hearing on the matter. As part of this hearing, the trial court heard arguments from both parties as to whether Dr. Manges and/or Dr. Plotnick would be permitted to testify since Shearer had admittedly not complied with the timing requirements of Crim.R. 16(K). When confronted with this issue, Shearer's trial counsel argued that he had done "everything possible" to comply with Crim.R. 16(K), but that Shearer was now stuck with the decision of whether she should waive her right to a speedy trial or forfeit her ability to call Dr. Manges and/or Dr. Plotnick to testify at trial. To this, the trial court stated:

[T]he Court understands that [Shearer] wishes to exercise her right to a speedy trial and has attempted to protect that by setting the trial for Monday, April the 24th. However, the Court will also extend to you the opportunity to request a continuance if you feel that you're prejudiced to the point where you need additional time to prepare. The Court could try this case in mid-June if you would like, but that's up to you and [Shearer]. So I don't - just put that on the record that the Court would entertain a motion to continue the trial if you believe it is necessary so that you can adequately prepare your client's case.

         Shearer's trial counsel initially declined the trial court's invitation, but noted that he would need to speak with Shearer before any final determination could be made.

         {¶ 7} Following this exchange, the trial court determined that Dr. Plotnick would not be permitted to testify at trial due to Shearer's failure to comply with Crim.R. 16(K). Similarly, as it relates to Dr. Manges, who the record indicates was prepared to offer his expert opinion on battered-woman's syndrome and posttraumatic stress disorder, the trial court determined he too would not be permitted to testify at trial. However, instead of excluding Dr. Manges' testimony based on a violation of Crim.R. 16(K), the trial court instead based its ruling on the Ohio Supreme Court's decision in State v. Goff, 128 Ohio St.3d 169, 2010-Ohio-6317, which held:

[W]hen a defendant demonstrates an intention to use expert testimony from a psychiatric examination to establish that battered-woman syndrome caused in her "a bona fide belief that she was in imminent danger of death or great bodily harm and that her only means of escape was the use of force, " i.e., to use testimony on battered-woman syndrome to prove the second element of self-defense, a court may compel the defendant to submit to an examination by another expert without violating the defendant's rights under Section 10, Article I of the Ohio Constitution and the Fifth Amendment to the United States Constitution.

Id. at ¶ 58, quoting State v. Thomas, 99 Ohio St.3d 323, 326 (1997). Continuing, the Ohio Supreme Court then stated in Goff:

By putting her mental state directly at issue and introducing expert testimony based upon her own statements to the expert, the defendant opens the door to a limited examination by the state's expert concerning battered-woman syndrome and its effect on the defendant's behavior.

Id.

         Finally, the Ohio Supreme Court stated in Goff:

Courts have the inherent authority to preserve fairness in the trial process, and allowing the defendant to present expert testimony on the specific effects of battered-woman syndrome on the defendant while denying the prosecution the ability to introduce such evidence would unfairly handicap the prosecution and prevent the trier of fact from making an informed decision.

Id.

         {¶ 8} Applying the principles outlined by the Ohio Supreme Court in Goff to the case at bar, the trial court stated:

And based on that the Court believes it's being put into a position where either the Court permits the testimony of Dr. Manges and doesn't allow the State to have an expert examine [Shearer] with regards to that issue, the Court would be put in the position of defying the Ohio Supreme Court and would be, by the language of that very decision, creating unfairness and preventing the trier of fact from making an informed decision. And the Court is simply not going to do that. So the Court believes it must, based on that case, grant the motion in limine and exclude Dr. Mange's testimony unless the State has the opportunity for an examination of [Shearer] in this case.

         {¶ 9} Thereafter, when asked if he was prepared to go forward with the jury trial as scheduled, Shearer's trial counsel informed the trial court that he would need to discuss the matter with Shearer. Specifically, Shearer's trial counsel stated:

Obviously, that changes the situation for her. I would argue that we are not if we're unable - because at this point she has to now choose between whether she waives her speedy right to trial or waives her right to call an expert as a witness. I think that I have to sit [and] discuss with her whether or not she wants to make that an appellate issue or whether she wants to ask for a continuance.

         {¶ 10} The following day, April 21, 2017, and after discussing the matter fully with Shearer, Shearer's trial counsel filed a motion to continue. In support of this motion, Shearer's trial counsel stated that because he had just "received over 700 pages of discovery 3 business days before the scheduled trial" from the state, he had been prevented "from being able to present necessary evidence in [Shearer's] defense." Therefore, according to Shearer's trial counsel, "[Shearer] must decide which Constitutional right to waive. On advice of counsel, she has decided to waive her right to a trial within 90 days of arrest based on the idea that the current Jury Trial can be continued to a June 2017 date."

         {¶ 11} Later that same day, the trial court granted Shearer's motion to continue and ordered that all expert reports be disclosed and exchanged between the parties by May 26, 2017. The trial court thereafter granted the state's motion requesting permission for their expert, Dr. Jennifer O'Donnell, a forensic psychologist, to interview Shearer at the Butler County Jail "regarding Battered Person's Syndrome and [Shearer's] thoughts and actions as it relates to the Syndrome." The record indicates that all expert reports were then disclosed and exchanged between the parties in accordance with the trial court's previous order on the same.

         The Trial

         {¶ 12} A five-day jury trial was held on June 19 through June 23, 2017. During this time, the jury heard testimony from numerous witnesses, including Shearer herself. The following is a summary of that testimony and the evidence presented at trial.

         The State's Case-in-Chief

         {¶ 13} The state's first witness was Dr. Mary Elizabeth Goolsby, a deputy coroner and forensic pathologist with the Montgomery County Coroner's Office, who, after conducting an autopsy of Tony's body, determined that Tony's cause of death was a homicide resulting from a single gunshot wound to the head. Dr. Goolsby, however, was unable to offer her opinion regarding the exact distance from where the gun was fired in relation to Tony's head. Rather, as Dr. Goolsby testified, assuming there was nothing between the gun Shearer used and Tony's head, "it could have been a few inches to a few feet to a distant range such as a mile or two."

         {¶ 14} The state's next witness, a woman who lived near where Tony was shot, testified that at approximately 7:45 p.m. on the day in question, she saw Shearer run out of the house located at 3601 Ellis Way and proceed to the right side of her car parked in the driveway before running back inside the house. According to this witness' testimony, nobody was chasing Shearer at the time. This witness also testified that she did not think anything out of the ordinary upon seeing Shearer that evening. Approximately one hour later, however, this witness testified that she and her husband noticed a large police presence outside the house located at 3601 Ellis Way and that the house had been totally roped off "[s]o something bad has really happened."

         {¶ 15} Detective Kristy Hughes with the Middletown Police Department then testified for the state. Detective Hughes, who also works overtime as a 9-1-1 dispatcher, testified she received a 9-1-1 call from Shearer at 8:27 p.m. on the night in question. A recording of that 9-1-1 call between Detective Hughes and Shearer was then authenticated and played for the jury. As part of this recording, Shearer can be heard telling Detective Hughes she shot Tony because "we were arguing over stuff." Shearer can also be heard telling Detective Hughes she thought she shot Tony in the head, but that she was not exactly sure where.[1] At no time during this 9-1-1 call, however, did Shearer ever claim to have shot Tony in self-defense, nor did Shearer ever state that Tony had been choking her, hitting her, or abusing her in any way prior to the shooting.

         {¶ 16} Next was Officer Christine Sorrell with the Middletown Police Department who testified for the state. Officer Sorrell testified she was dispatched to 3601 Ellis Way at 8:28 p.m. on the night in question on reports that there had been a shooting, taking approximately one minute to arrive at the scene. Before arriving at the scene, however, Officer Sorrell testified she turned on her lights and siren, thereby also activating her in-car cruiser camera and microphone. The recording from Officer Sorrell's in-car cruiser camera was then authenticated and played for the jury, which shows Officer Sorrell arriving at the scene and contacting Shearer, who appeared somewhat unsteady and slow. Upon making contact with Shearer, Officer Sorrell testified that Shearer repeatedly stated, "I don't know what I did." When asked if she noticed anything about Shearer's speech, Officer Sorrell testified Shearer's speech was "slightly slurred, " thus giving Officer Sorrell the impression Shearer may have been under the influence of either drugs or alcohol.

         {¶ 17} After placing Shearer in the back of her cruiser, Officer Sorrell testified she then went into the house located at 3601 Ellis Way where she found Tony lying unresponsive on the living room floor. A photograph of Tony's body as discovered by Officer Sorrell was then shown to the jury. This photo shows Tony face down on the living room carpet with a large pool of blood around his head. Upon seeing Tony's body, Officer Sorrell testified she reached down to see if Tony was breathing or if there was anything that could be done before the ambulance arrived. It is undisputed that Tony was not breathing at that time.

         {¶ 18} Once the ambulance arrived, Officer Sorrell testified she went outside to her cruiser and spoke with Shearer, who, upon Officer Sorrell opening the door, exhibited the smell of an alcoholic beverage on her person. Not seeing any injuries to Shearer, nor receiving any complaints from Shearer that she was injured, Officer Sorrell testified she then transported Shearer to the police station where detectives were awaiting her arrival. During this brief drive, Officer Sorrell testified Shearer repeatedly stated, "I don't know what I did."

         {¶ 19} Officer Connor Kirby with the Middletown Police Department then testified for the state. Officer Kirby testified he was the second officer to arrive at the scene upon being dispatched to 3601 Ellis Way on reports of a shooting. Once there, Officer Kirby testified that he acted as the cover officer for Officer Sorrell after Shearer was ordered to walk backwards from the house towards them. During this time, Officer Kirby testified Shearer repeated three or four times "I don't know what I did, I don't know what I did, " before Officer Sorrell handcuffed her and placed her in the back of her cruiser.

         {¶ 20} After Shearer was placed in the back of Officer Sorrell's cruiser, Officer Kirby testified he retrieved crime scene tape from his cruiser and secured the scene. When asked if he saw any injuries to Shearer that evening, Officer Kirby testified that he did not. Officer Kirby then testified that he too noticed a "strong" order of alcoholic beverage on Shearer's person. Specifically, Officer Kirby testified:

It was just a strong odor. It almost knocks you down. It comes right at you. You immediately know when you smell it. It just had a strong odor to it consistent ...

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