Court of Appeals of Ohio, Second District, Montgomery
Criminal Appeal from Common Pleas Court Trial Court Case No.
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No.
0069384, Assistant Prosecuting Attorney, Montgomery County
Prosecutor's Office, Appellate Division, Montgomery
County Attorney for Plaintiff-Appellee/Cross-Appellant
A. FISCHER, Atty. Reg. No. 0068346, Attorney for
WELBAUM, P. JUDGE
1} Defendant-appellant, Harvey L. Jones, appeals
from his conviction and sentence for multiple counts of
aggravated murder, aggravated robbery, aggravated burglary,
and having weapons under disability following a jury trial in
the Montgomery County Court of Common Pleas. In support of
his appeal, Jones contends that the trial court prohibited
him from effectively cross-examining the sole eyewitness to
the offenses. Jones also contends that he was not afforded a
meaningful opportunity to present a complete defense due to
the trial court's prohibiting him from introducing
evidence of an alternate suspect. Jones further contends that
the trial court should have excluded prejudicial autopsy
photographs as evidence and that the State made racially
discriminatory preemptory challenges during voir dire.
Lastly, Jones contends that the trial court erred in failing
to expand the jury venire to include licensed drivers as well
as registered voters.
2} The State cross-appeals contending that the trial
court erred in dismissing two counts of kidnapping, two
counts of aggravated murder based on kidnapping, and multiple
kidnapping-related death penalty specifications. The State
also contends that the trial court erred in merging
Jones's aggravated murder offenses at the penalty phase
of trial instead of waiting to merge the offenses at
sentencing, as well as in merging an aggravated-robbery death
penalty specification with an aggravated-burglary death
penalty specification. Lastly, the State contends that the
trial court erred in allowing Jones to argue residual doubt
during the penalty phase of trial.
3} For the reasons outlined below, we find no merit
to any of Jones's claims on appeal. With regard to the
State's cross-appeal, we find that the trial court erred
as a matter of law with respect to each of the State's
claims. However, because the trial court's errors do not
affect the validity of Jones's conviction and because the
protections afforded by the Double Jeopardy Clause prohibit a
retrial of the erroneously dismissed charges and
specifications and of the penalty phase of trial, the
judgment of the trial court will be affirmed.
and Course of Proceedings
4} On April 11, 2013, Jones was charged in a
fourteen-count indictment with two counts of aggravated
burglary, two counts of kidnapping, two counts of aggravated
robbery, two counts of having weapons under disability, and
six counts of aggravated murder. The six counts of aggravated
murder were charged under R.C. 2903.01 (B) and were based on
the two aggravated burglaries, two kidnappings, and two
aggravated robberies. Each of the aggravated murder counts
included a firearm specification, a repeat violent offender
specification, and four death penalty specifications. Each of
the aggravated burglary, kidnapping, and aggravated robbery
counts also included a firearm specification and a repeat
violent offender specification. All the charges and
specifications stemmed from the murders of Jones's
ex-girlfriend, Carley Hughley, and her friend, Demetrius
5} Hughley's son, A.U., who was ten years old at
the time of the murders, witnessed the murders and testified
against Jones at trial. A.U. testified that Jones is his
mother's ex-boyfriend who had lived with him and his
mother for a few months at their apartment in Dayton, Ohio.
A.U. indicated that his mother and Jones got into arguments
approximately two times a week and that he specifically
recalled an argument that turned physical when Jones
attempted to bring a gun into their apartment. During that
incident, A.U. testified that his mother pushed Jones, who
then pushed her back and jumped on top of her. A.U. testified
that he went to the neighbor for help and that the neighbor
6} The State admitted evidence of the neighbor's
9-1-1 call as well as two other 9-1-1 calls made by Hughley a
week prior to the murders in response to conduct by Jones.
The State also had Hughley's mother and several of
Hughley's friends and coworkers testify regarding
Hughley's fear of Jones. A.U. testified that he and his
mother had to live with his grandmother for a period of time
because Jones would not leave their apartment and was sending
threatening messages to his mother. A.U. testified that they
were eventually able to move back into their home when Jones
left the apartment.
7} With regard to the murders, A.U. testified that
on the night of January 23, 2013, he was upstairs in his
bedroom watching television while his mother and her friend,
Beckwith, were downstairs. A.U. testified that he decided to
go downstairs to say goodbye to Beckwith when he heard that
Beckwith was leaving the apartment. However, just as he began
to turn the corner down the stairs, A.U. observed Jones barge
through the apartment door. A.U. claimed that Jones forced
his way into the apartment and then shoved Beckwith to the
ground while waiving a gun in his hand.
8} Once inside the apartment, A.U. testified that
Jones told Beckwith to "shut the F up." Trans. Vol.
XIII (Sept. 19, 2016), p. 2382. A.U. claimed that Beckwith
pled with Jones not to hurt him and offered Jones his keys,
money, and wallet. A.U. testified that his mother was on the
ground with Beckwith and that she told Jones "please
don't hurt my baby." Id. According to A.U.,
Jones continued waiving the gun around and repeatedly said
"shut the F up." Id. at 2383.
9} Continuing, A.U. testified that Jones made his
mother and Beckwith lay on their stomachs before firing
several shots at them from a standing position. After Jones
fired the shots, A.U. observed Jones go through his
mother's pockets and remove her cell phone. A.U. then saw
Jones go through Beckwith's pockets and remove his keys
and cash. After Jones took those items, A.U. observed Jones
run out the apartment door. During the entire incident, A.U.
claimed that he was hiding at the corner of the stairway,
peeking around the wall where he was able to observe
10} After Jones left the apartment, A.U. testified
that he went to check on his mother who was still breathing
but gagging up blood. A.U. said his mother was able to tell
him to call his grandma and to tell the family she loved
them. A.U. then checked on Beckwith, who A.U. testified was
not moving at all. After checking on his mother and Beckwith,
A.U. ran to his neighbor's apartment and told the
neighbor, Roberta, and her two adult sons, Shawn and Gemayel,
that his mother had been shot. It is undisputed that Roberta,
who died prior to trial, called 9-1-1 for help.
11} When the police arrived at the scene, A.U. told
the officers that Jones had shot his mother and Beckwith.
Beckwith was pronounced dead at the scene and A.U.'s
mother was taken to the hospital where she later died from
multiple gunshot wounds. The next morning, the police
arrested Jones at the home of his girlfriend, Vivian Jones
("Vivian"), with whom he had been residing.
12} Vivian testified that on the night of the
murders, Jones left her residence around 10:30 or 11:00 p.m.
and returned sometime after 1:48 a.m. Vivian testified that
when Jones returned, he gave her $100 in cash and then went
to sleep without telling her where he had been. Later that
morning, Vivian testified that the police came to her house
and picked up Jones, who told her "Baby, tell them I was
asleep." Trans. Vol. XIV (Sept. 20, 2016), p. 2653.
13} The State also presented testimony from various
cell phone records custodians and a representative from the
FBI's Cellular Analysis Survey Team ("CAST").
Their testimony indicated that Jones's cell phone was
receiving service from the cellular tower that served the
location of the murders within an hour before the neighbor
called 9-1-1 to report the shootings.
14} After the State called several other witnesses
and rested its case, Jones moved the trial court to dismiss
all the charges against him pursuant to Crim.R. 29. The trial
court granted the motion, in part, dismissing the two
kidnapping charges, the two charges of aggravated murder that
were based on kidnapping, and the death penalty
specifications that were based on kidnapping. Without calling
any witnesses, Jones then rested his case.
15} Following deliberation, the jury found Jones
guilty of all the remaining charges and specifications with
the exception of the two weapons under disability charges and
the repeat violent offender specifications, which were tried
before the bench. After considering the evidence admitted
during trial and the parties' stipulations regarding
Jones's criminal record,  the trial court found Jones
guilty of both weapons under disability charges and the
repeat violent offender specifications.
16} The matter then proceeded to the penalty phase
of trial, during which the jury was charged with determining
whether Jones should receive the death penalty or whether any
mitigating factors weighed against imposing a death sentence.
Prior to this phase of trial, the trial court decided, over
the State's objection, to merge the two counts of
aggravated murder related to Hughley (one count committed
through aggravated burglary and one count committed through
aggravated robbery) and the two counts of aggravated murder
related to Beckwith (one count committed through aggravated
burglary and one count committed through aggravated robbery),
so that the jury only had to consider one count of aggravated
murder for each victim. In doing so, the trial court ordered
the State to select which counts of aggravated murder to
submit to the jury. The State chose the
aggravated-burglary-related count for Hughley and the
aggravated-robbery-related count for Beckwith. The trial
court indicated that it decided to merge the aggravated
murder offenses at the penalty phase as opposed to at
sentencing in order to prevent the jury from getting
"the impression that because there's two counts
[for] each [victim] that somehow it's worse." Trans.
Vol. XIX (Sept. 27, 2016), p. 3519.
17} During the penalty phase of trial, the trial
court also merged the aggravated-robbery and
aggravated-burglary death penalty specifications related to
the murder of Hughley. The trial court explained that it
decided to merge these specifications because it found that
Jones's act of taking Hughley's cell phone was more
akin to tampering with evidence than robbery. The trial court
reached this conclusion based on its assumption that Jones
took Hughley's cell phone to conceal evidence. Since
there is no death penalty specification related to tampering
with evidence under R.C. 2929.04, the trial court found it
was appropriate to merge the aggravated-robbery death penalty
specification into the aggravated-burglary death penalty
18} At the close of the penalty phase of trial, the
jury deliberated and recommended a sentence of life in prison
without parole for each count of aggravated murder. Upon the
jury's recommendation, the trial court sentenced Jones to
two terms of life in prison without parole for the aggravated
murders of Hughley and Beckwith. In addition to imposing two
life terms, the trial court merged the two aggravated
burglary counts into one conviction and imposed an 11-year
prison sentence for that offense. The trial court also merged
the two weapons under disability counts into one conviction
and imposed a 36-month prison sentence for that offense. The
trial court further imposed an additional 11-year prison
sentence for each of the two aggravated robbery offenses,
which the trial court did not merge. The trial court then
merged all the repeat violent offender specifications under
the aggravated burglary charge and imposed a 10-year prison
sentence for that specification. The trial court also imposed
two three-year firearm specifications for each of the
aggravated murders. All of the prison terms were ordered to
run consecutively, thereby resulting in Jones being sentenced
to a total of two consecutive life terms without parole plus
52 additional years in prison.
19} Jones now appeals from his conviction and
sentence, raising five assignments of error for review. Jones
also attaches an appendix to his appellate brief listing
seven additional assignments of error. In response, the State
filed a cross-appeal raising three assignments of error. For
ease of discussion, we will first address the assignments of
error raised by Jones and then address the State's
assignments of error raised on cross-appeal.
Assignment of Error
20} Jones's First Assignment of Error is as
THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. JONES WHEN IT
PROHIBITED MR. JONES FROM INVESTIGATING AND INQUIRING INTO
THE MEDICAL HISTORY OF THE ONLY WITNESS TO THE KILLINGS.
21} Under his First Assignment of Error, Jones
contends that he was denied the right to effectively
cross-examine A.U. at trial. Specifically, Jones claims that
the trial court erred in prohibiting Jones from questioning
A.U. regarding the medications he was taking and from
presenting expert testimony regarding the potential side
effects of those medications and whether the side effects
could have affected A.U.'s ability to accurately perceive
what happened on the night of the murders. Jones's
argument stems from the trial court's decision not to
allow the defense to review A.U.'s confidential mental
health and school records, which Jones wanted to access in
order to challenge A.U.'s credibility.
22} The record indicates that the trial court
properly conducted an in camera review of A.U.'s mental
health and school records for purposes of determining whether
the records contained any information material to Jones's
defense. See Pennsylvania v. Ritchie, 480 U.S. 39,
57-61, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987) (resolving the
conflict between a defendant's right to access
information that is material to his defense and the
confidentiality afforded children services records by holding
that a defendant's right to due process and a fair trial
entitles him to an in camera review by the trial court of the
records to determine whether the records contain any evidence
material the defendant's defense); In re J.W.,
9th Dist. Lorain No. 10CA009939, 2011-Ohio-3744, ¶ 14-15
(applying the holding in Ritchie to a minor's
confidential mental health records).
23} A trial court conducts an in camera inspection
to determine: "(1) whether the records are necessary and
relevant to the pending action; (2) whether good cause has
been shown by the person seeking the disclosure; and (3)
whether their admission outweighs the confidentiality
considerations." J.W. at ¶ 7, citing
State v. McGovern, 6th Dist. Erie No. E-08-066,
2010-Ohio-1361, ¶ 28; In re C.A., 8th Dist.
Cuyahoga No. 102675, 2015-Ohio-4768, ¶ 80.
24} In this case, following its in camera review,
the trial court advised the parties that A.U.'s mental
health records revealed that A.U. had been diagnosed with
certain mental disorders prior to the murders for which he
had been taking medication. The trial court indicated that it
had researched the possible side effects of A.U.'s
medication and found that the only potential side effect
relevant to trial was "possible hallucinations, i.e.,
seeing and/or hearing things that are not based in
reality."  Trans. Vol. III (Apr. 27, 2016), p. 449.
The trial court noted that although there was a possible risk
of hallucinations associated with A.U.'s medication,
A.U.'s mental health records indicated that no such risk
materialized while A.U. was on the medication either before
or after the murders. Accordingly, the trial court found
[T]he fact that the boy was on medication with certain known
side effects would have been inadmissible, because no
evidence indicates the boy suffered from those side effects.
Thus, such general information regarding possible drug side
effects would be irrelevant and would be excluded pursuant to
Evidence Rule 402. Even if the information had some marginal
relevance, which the court believes it does not, it would be
outweighed by the danger of unfair prejudice per Evidence
Rule 403(a), which mandates its exclusion.
Trans. Vol. III (Apr. 27, 2016), p. 450-451.
25} Having reviewed all the records at issue, we
conclude that the trial court correctly determined that
A.U.'s mental health and school records did not contain
any information material to Jones's defense. We further
agree that the medication A.U. was taking and the possible
side effects associated with that medication were irrelevant,
since A.U.'s mental health records indicate that he never
experienced any hallucinations, illusions, or psychosis, but
instead exhibited logical, linear thought processes at all
26} Nevertheless, Jones argues that his right to
effective cross-examination under the Confrontation Clause of
the Sixth Amendment to the United States Constitution should
have permitted him to ask A.U. what medication he was taking
and to present expert testimony regarding the
medication's side effects. The Confrontation Clause,
however, "only guarantees 'an opportunity
for effective cross-examination, not cross-examination that
is effective in whatever way, and to whatever extent, the
defense might wish.' " (Emphasis sic.)
Ritchie, 480 U.S. 39 at 53, 107 S.Ct. 989, 94
L.Ed.2d 40, quoting Delaware v. Fensterer, 474 U.S.
15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985). "
'[T]rial judges retain wide latitude insofar as the
Confrontation Clause is concerned to impose reasonable limits
on * * * cross-examination [of a prosecution witness] based
on concerns about, among other things, harassment, prejudice,
confusion of the issues, the witness' safety, or
interrogation that is repetitive or only marginally
relevant.' " State v. Abbasov, 2d Dist.
Montgomery No. 26470, 2015-Ohio-5379, ¶ 17, quoting
Delaware v. Van Arsdall, 475 U.S. 673, 679, 106
S.Ct. 1431, 89 L.Ed.2d 674 (1986). Therefore, the "
'extent of cross-examination with respect to an
appropriate subject of inquiry is within the sound discretion
of the trial court.' " State v. Green, 66
Ohio St.3d 141, 147, 609 N.E.2d 1253 (1993), quoting
Alford v. United States, 282 U.S. 687, 694, 51 S.Ct.
218, 75 L.Ed. 624 (1931).
27} In this case, it was not an abuse of discretion
for the trial court to prohibit Jones from cross-examining
A.U. on an issue that was irrelevant to trial. As previously
discussed, there is nothing in A.U.'s mental health or
school records indicating that A.U.'s medications
affected his ability to perceive reality. Accordingly, there
was no basis for allowing Jones to cross-examine A.U.
regarding his medication or to present evidence of possible
28} While we find no error with regard to the
limitations placed on Jones's cross-examination of A.U.,
we do find that the trial court erred in failing to disclose
a certain communication it had with Dr. Kara Marciani, a
licensed psychologist at the Forensic Psychiatry Center for
Western Ohio. In reviewing A.U.'s records, this court
came across a short memorandum prepared by the trial court
indicating that on April 15, 2016, at 9:50 a.m., the trial
court judge had a telecom conference with Dr. Marciani
regarding A.U.'s mental health records and his
medication. According to the memorandum, Dr. Marciani advised
the trial court that A.U.'s medication would not affect
his ability to accurately perceive and testify regarding the
29} There is nothing in the record indicating
whether the trial court ever disclosed its communication with
Dr. Marciani and her opinion to the parties. We find this
troubling, as the trial court essentially sought out an
expert opinion without giving Jones a chance to present his
own expert opinion. However, even if Jones had been given an
opportunity to rebut Dr. Marciani's opinion with his own
expert, the fact remains that the mental health records at
issue indicate that A.U. never experienced any side effects
from his medication that would have affected his ability to
perceive the murders. In other words, a contrary expert
opinion would not have changed the fact that A.U. did not
hallucinate or misperceive reality. Therefore, the trial
court's error in failing to advise the parties of its
communication with Dr. Marciani and her opinion was harmless.
30} Jones's First Assignment of Error is
Assignment of Error
31} Jones's Second Assignment of Error is as
THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. JONES WHEN IT
PROHIBITED MR. JONES FROM INTRODUCING EVIDENCE OF AN
ALTERNATIVE SUSPECT WHO HAD THREATENED VIA E-MAIL TO KILL ONE
OF THE VICTIMS.
32} Under his Second Assignment of Error, Jones
contends that he was not afforded a meaningful opportunity to
present a complete defense at trial because the trial court
prohibited him from introducing evidence of an alternative
suspect. Specifically, Jones claims that the trial court
improperly excluded evidence of certain text messages
received and sent by Beckwith on his cell phone that,
according to Jones, show that Beckwith associated with
unscrupulous individuals who threatened his life. Jones
claims that these text messages establish the existence of an
alternative suspect who had the motivation to kill Beckwith.
33} While there is no question that all criminal
defendants are constitutionally guaranteed a meaningful
opportunity to a complete defense, criminal defendants do not
necessarily have a right to present all evidence of
third-party guilt. State v. Swann, 119 Ohio St.3d
552, 2008-Ohio-4837, 895 N.E.2d 821, ¶ 19; State v.
Gillispie, 2d Dist. Montgomery Nos. 22877, 22912,
2009-Ohio-3640, ¶ 120, citing Holmes v. South
Carolina, 547 U.S. 319, 126 S.Ct. 1727, 164 L.Ed.2d 503
(2006) (" 'A complete defense' may
include evidence of third-party guilt." (Emphasis
34} The United States Supreme Court has indicated
that it is widely accepted that evidence introduced to prove
that another person may have committed the crime with which
the defendant is charged " 'may be excluded where it
does not sufficiently connect the other person to the crime,
as, for example, where the evidence is speculative or remote,
or does not tend to prove or disprove a material fact in
issue at the defendant's trial[.]' "
Holmes, 547 U.S. at 327, quoting 40A American
Jurisprudence 2d, Homicide, Section 286 (1999). Accord
State v. Walker, 5th Dist. Stark No. 2005-CA-00286,
2006-Ohio-6240, ¶ 49, quoting Smithart v.
Alaska, 988 P.2d 583, 586 (1999), quoting Marrone v.
State, 359 P.2d 969, 984-985, fn. 19 (1961) ("
'when a defendant wishes to implicate a specific
individual, evidence of the third party's guilt is
admissible only if the defense can produce evidence that
"tend[s] to directly connect such other person with the
actual commission of the crime charged." ' ").
" '[F]requently matters offered in evidence for [the
purpose of showing third-party guilt] are so remote and lack
such connection with the crime that they are excluded.'
" Holmes, 547 U.S. at 327, quoting 41 Corpus
Juris Secundum., Homicide, Section 216 (1991).
35} However, there is " ' "no
requirement that the proffered evidence [of a third
party's guilt] must prove or even raise a strong
probability that someone other than the defendant committed
the offense. Rather, the evidence need only tend to create
reasonable doubt that the defendant committed the
offense." ' " (Emphasis omitted.) State v.
Gillispie, 2d Dist. Montgomery No. 24456,
2012-Ohio-1656, ¶ 40, quoting Walker at ¶
50, quoting Johnson v. United States, 552 A.2d 513,
36} In this case, a review of the record indicates
that Jones did not offer the text messages at issue as
evidence of an alternative suspect. Rather the record
indicates that Jones offered the text messages to establish
how the police had failed to investigate the existence of an
alternative suspect. See Trans. Vol. XV (Sept. 21,
2016), p. 2796. In fact, Jones told the trial court that
while he believed there was an alternative suspect, he did
not know for sure given that an investigation was never
performed. Id. Accordingly, since Jones never
identified or offered evidence of an alternative suspect, it
cannot be said the trial court erred in excluding the text
messages for that purpose.
37} Although Jones specifically advised the trial
court that he was not offering the aforementioned text
messages as evidence of an alternative suspect, the trial
court found otherwise and proceeded to analyze whether the
text messages could properly be used for that purpose.
See Id. at 2803. The text messages at issue include
four separate conversations that occurred between September
2012 and January 2013. The contents of the text messages are
Unidentified Individual: Juan asked if you took money up
Beckwith: Not yet.
Unidentified Individual: Stop ...