IN THE SUPREME COURT OF OHIO IN THE SUPREME COURT OF OHIO STATE OF OHIO, : Appellee, : CASE NO. 14-0313 -vs- : RICHARD BEASLEY, : Death Penalty Case Appellant. : _____ On Appeal from

IN THE SUPREME COURT OF OHIO

STATE OF OHIO, : Appellee, : CASE NO. 14-0313 -vs- : RICHARD BEASLEY, : Death Penalty Case Appellant. : ______________________________________________________________________________

On Appeal from the Court of Common Pleas, Summit County, Ohio Case No. CR-2012 01 0169(A)

______________________________________________________________________________

REPLY BRIEF OF APPELLANT RICHARD BEASLEY ______________________________________________________________________________ Office of the Summit County Prosecutor Office of the Ohio Public Defender SHERI BEVAN-WALSH - 0012084 RANDALL PORTER – 0005835 Summit County Prosecutor Assistant State Public Defender Office of the Summit County Prosecutor TYSON FLEMING – 0073135 Summit County Safety Building Assistant State Public Defender 53 University Avenue, 6th Floor Akron, Ohio 44308 DANIEL JONES – 0041224 (330) 643-7459 Assistant State Public Defender and Office of the Ohio Public Defender 250 East Broad St., Suite 1400 THOMAS E. MADDEN - 0077019 Columbus, Ohio 43215 Counsel of Record (614) 466-5394 (614) 644-0708 (fax) STEPHEN MAHER - 0032279 [email protected]. [email protected] Special Summit County Prosecutors [email protected] Office of the Ohio Attorney General 150 E. Gay Street, 16th Floor Columbus, Ohio 43215 (614) 728-7055 COUNSEL FOR APPELLEE COUNSEL FOR APPELLANT

Supreme Court of Ohio Clerk of Court - Filed March 25, 2015 - Case No. 2014-0313

i

TABLE OF CONTENTS TABLE OF CONTENTS ............................................................................................................. ii

TABLE OF AUTHORITIES ...................................................................................................... iii

PREFACE TO ARGUMENT ..................................................................................................... vi

PROPOSITION OF LAW NO. 1 .................................................................................................1

A trial court must make specific findings at the time of sentencing to impose consecutive sentences and court costs. .....................................................................................1


A capital defendant’s rights to due process and a fair trial by an impartial jury are violated by the trial court’s denial of a motion for change of venue where there is pervasive, prejudicial pretrial publicity. U.S. Const. amends. V, VI, IX and XIV; Ohio Const. art. I §§ 5 and 16. ............................................................................4


A capital defendant is denied his substantive and procedural due process rights to a fair trial when a prosecutor commits acts of misconduct during the opening statement and in allowing a biased juror to remain seated during his capital trial. The resulting sentence is arbitrary and unreliable. U.S. Const. amends. VI, VIII, XIV; Ohio Const. art. I, §§ 9, 16, 20. ..........................................................8

PROPOSITION OF LAW NO. 4 ...............................................................................................15

A trial court’s decision to allow a biased juror to sit on a defendant’s jury and participate in the deliberations to decide the defendant’s guilt and sentence violates the defendant’ Sixth Amendment right to an impartial jury. U.S. Const. amends. VI, XIV; Ohio Const. art. I §§ 5, 10. ............................................................15


The accused’s right to confront witnesses against him is violated when testimony from an out of court declarant is admitted against the accused in a criminal prosecution, and the accused lacked a prior opportunity for cross-examination. The accused’s right to a fair trial is prejudiced when unreliable hearsay is admitted in a criminal prosecution against the accused. U.S. Const. amend. VI, XIV; Ohio Const. art. I, § 10; Ohio R. Evid. 403(A), 801(C). ....................................................................................................................................19


The acts and omissions of trial counsel deprived a defendant of a fair and reliable result in both phases of a capital trial. U.S. Const. amends. VI, XIV; Ohio Const. art. I §§ 5, 10. .....................................................................................................22

ii


A trial court denies a capital defendant’s right to allocution when the defendant is given an exceptionally limited opportunity to speak before the death penalty is imposed. U.S. Const. amends. V, VIII, XIV. ..............................................32

PROPOSITION OF LAW NO. 10 .............................................................................................36

A criminal conviction that is not supported by substantial credible evidence will be reversed on appeal. .....................................................................................................36

CONCLUSION ............................................................................................................................42

CERTIFICATE OF SERVICE ..................................................................................................43

iii

TABLE OF AUTHORITIES

CASES Aldridge v. United States, 283 U.S. 308 (1931) .................................................................... 26

Arizona v. Fulminante, 499 U.S. 279 (1991) ........................................................................... 6

Austin v. Bell, 126 F.3d 843 (6th Cir. 1997) .......................................................................... 22

Carrothers v. Hunter, 23 Ohio St. 2d 99, 262 N.E. 2d 867 (1970) ....................................... 33

Cauthern v. Colson, 736 F.3d 465 (6th Cir. 2013) ................................................................ 10

Chapman v. California, 386 U.S. 18 (1967) .......................................................................... 21

Cohen v. Senkowski, 290 F.3d 485 (2nd Cir. 2002) .............................................................. 23

Commonwealth v. Chimel, 639 A.2d 9 (Penn. 1994) ............................................................ 26

Crawford v. Washington, 541 U.S. 36 (2004) ....................................................................... 19

Dutton v. Evans, 400 U.S. 74 (1970) ..................................................................................... 19

Ex parte Varelas, 45 S.W.3d 627 (Tex. Crim. App. 2001) ................................................... 26

Farina v. Sec’y, Fla. Dep’t of Corr., 536 Fed Appx. 966 (11th Cir. 2013) .......................... 11

Freeman v. Lane, 962 F.2d 1252 (7th Cir. 1992) .................................................................. 24

Giles v. California, 554 U.S. 353 (2008) ............................................................................... 19

Goins v. McKeen, 605 F.2d 947 (6th Cir. 1979) ...................................................................... 6

Gray v. Mississippi, 481 U.S. 648 (1987) .............................................................................. 17

Greer v. Mitchell, 264 F.3d 663 (6th Cir. 2001) .................................................................... 24

Hughes v. United States, 258 F.3d 453 (6th Cir. 2001) ......................................................... 15

In re Winship, 397 U.S. 358 (1970) ......................................................................................... 6

Johnson v. Luoma, 425 F.3d 318 (6th Cir. 2005) .................................................................. 16

Miller v. Francis, 269 F.3d. 609 (6th Cir. 2001) ................................................................... 16

Miller v. Webb, 385 F.3d 666 (6th Cir. 2004) ....................................................................... 15

Morgan v. Illinois, 504 U.S. 719 (1992) ............................................................................ 6, 26

Mu'Min v. Virginia, 500 U.S. 415 (1991) .............................................................................. 17

Murphy v. Florida, 421 U.S. 794 (1975) ................................................................................. 7

Patton v. Yount, 467 U.S. 1025 (1984) .................................................................................. 16

People v. Harlan, 109 P.3d 616 (Colo. 2005) ....................................................................... 11

Powell v. Alabama, 287 U.S. 45 (1932) ................................................................................ 17

Reynolds v. United States, 98 U.S. 145 (1879) ........................................................................ 6

Romine v. Head, 253 F.3d 1349 (11th Cir. 2001) .................................................................. 11

iv

Rose v. Clark, 478 U.S. 570 (1986) ....................................................................................... 17

Sheppard v. Maxwell, 384 U.S. 333 (1966) ............................................................................. 6

Silverthorne v. United States, 400 F.2d 627 (9th Cir. 1968) ................................................... 7

Smith v. Phillips, 455 U. S. 209 (1982) ................................................................................... 8

State v. Bonnell, 140 Ohio St. 3d 209, 116 N.E.2d 659 (2014) ........................................... 1, 2

State v. Campbell, 90 Ohio St. 3d 320, 738 N.E.2d 1178 (2000) .................................... 32, 33

State v. Carter, 89 Ohio St. 3d 593, 734 N.E.2d 345 (2000) ........................................... 30, 31

State v. Filiaggi, 86 Ohio St. 3d 230, 714 N.E.2d 867 (1999) .............................................. 33

State v. Golphin, 81 Ohio St. 3d 543, 692 N.E.2d 608 (1998) .............................................. 33

State v. Hale, 119 Ohio St. 3d 118, 892 N.E.2d 864 (2008) ........................................... 16, 17

State v. Joseph, 125 Ohio St. 3d 76, 926 N.E.2d 278 (2010) .................................................. 2

State v. Madrigal, 87 Ohio St. 3d 378, 721 N.E.2d 52 (2000) .............................................. 31

State v. Martin, 103 Ohio St. 3d 385, 816 N.E.2d 227 (2004) .............................................. 17

State v. Pless, 74 Ohio St. 3d 333, 658 N.E.2d 766 (1996) ................................................... 33

State v. Ricks, 136 Ohio St. 3d 356, 995 N.E.2d 1181 (2013) ............................................... 20

State v. Smith, 14 Ohio St. 3d 13, 470 N.E.2d 883 (1984) ...................................................... 8

State v. Smith, 17 Ohio St. 3d 98, 477 N.E.2d 1128 (1985) ......................................... 23, 24, 28

State v. Treesh, 90 Ohio St. 3d 460, 739 N.E.2d 749 (2001) ................................................ 16

State, ex rel. Dayton Newspapers, Inc. v. Phillips, 46 Ohio St. 2d 457, 351 N.E.2d 127 (1976)............................................................................................................... 6

State, ex rel. Fogle v. Steiner, 74 Ohio St. 3d 158, 656 N.E.2d 1288 (1965) .......................... 2

Treesh v. Bagley, 612 F.3d 424 (6th Cir. 2010) ................................................................... 16

Turner v. Murray, 476 U.S. 28 (1986) .................................................................................. 26

United States v. Dellinger, 472 F.2d 340 (7th Cir. 1972) ........................................................ 7

Valentine v. United States, 488 F.3d 325 (6th Cir. 2007) ...................................................... 23

White v. McAninch, 235 F.3d 988 (6th Cir. 2000) ................................................................. 22

Wiggins v. Smith, 539 U.S. 510 (2003) ................................................................. 22, 23, 24, 27

Wolfe v. Brigano, 232 F.3d 499 (6th Cir. 2000) .................................................................... 15

Workman v. Tate, 957 F.2d 1339 (6th Cir. 1992) .................................................................. 22

CONSTITUTIONAL PROVISIONS Ohio Const. art. I, § 5 .............................................................................................. 4, 7, 15, 22

Ohio Const. art. I, § 9 ........................................................................................................ 8, 14

Ohio Const. art. I, § 10 .............................................................................................. 15, 19, 22

v

Ohio Const. art. I, § 16 .............................................................................................. 4, 7, 8, 14

Ohio Const. art. I, § 20 ...................................................................................................... 8, 14

U.S. Const. amend. V .................................................................................................... 4, 7, 32

U.S. Const. amend. VI .................................................................................................... passim

U.S. Const. amend. VIII .............................................................................................. 8, 14, 32

U.S. Const. amend. IX ............................................................................................................. 4

U.S. Const. amend. XIV ................................................................................................. passim

STATUTES R.C. 2929.03 .......................................................................................................................... 25

R.C. 2929.14 ............................................................................................................................ 1

RULES Ohio R. Crim. P. 18 ................................................................................................................. 6

Ohio R. Crim. P. 32 ............................................................................................................... 32

Ohio R. Evid. 403 .................................................................................................................. 19

Ohio R. Evid. 801 .................................................................................................................. 19

OTHER AUTHORITIES Merriam-Webster Dictionary, www.merriam-

webster.com/dictionary/invocation ..................................................................................... 9

Strengthening Forensic Science in the United States: A Path Forward (2009) .................... 29

www.oxforddictionaries.com/defintion/english/sensationalism .............................................. 4

vi

PREFACE TO ARGUMENT

Appellant Richard Beasley hereby replies to the State’s Merit Brief. Beasley relies on the

arguments he presented in his Merit Brief where no reply is made herein, and does not waive any

previously made arguments.

1

PROPOSITION OF LAW NO. 1

A trial court must make specific findings at the time of sentencing to impose consecutive sentences and court costs.

Beasley raised two issues in this proposition of law. Beasley Merit Brief, pp. 17-19. He

first asserted that the trial court had failed to make the requisite statutory findings prior to

imposing consecutive sentences. Id. at pp. 17-18. He also asserted that the trial court erred

when it imposed court costs in its sentencing entry without having first addressed the issue at the

sentencing hearing. Id. at p. 19. Beasley will separately address each issue in this reply brief.1

A. The Trial Court Improperly Imposed Consecutive Sentences.

A trial court, when imposing consecutive sentences, must at the sentencing hearing make

the statutory findings contained in R.C. 2929.14(C) and then incorporate those findings in its

sentencing entry. State v. Bonnell, 140 Ohio St. 3d 209, 218, 116 N.E.2d 659 (2014). A trial

court is required to determine prior to imposing consecutive sentences “that consecutive

sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger

the offender poses to the public.” R.C. 2929.14(C)(4).

The trial court did not make the required proportionality finding at either the sentencing

hearing or in its sentencing entry. Beasley’s Merit Brief, p. 18. The State adopts the perspective

that the trial court need not have specifically made this finding, if this Court can “discern that the

trial court felt consecutive sentences were proportionate.” State’s Brief, p. 68 (emphasis added).

What the trial court may have “felt” concerning proportionality does not satisfy the statutory

requirement that the trial court make a specific finding concerning proportionality. Even if this

Court determines that it is sufficient for purposes of the statutory requirement that a trial court

1 The State in in its brief gratuitously raised the related, but distinct, issue of the consecutive sentences as to the firearm specifications. State’s Merit Brief, pp. 63-64. Because Beasley did not raise that issue in his merit brief, he will not respond to that portion of the State’s merit brief.

2

obliquely express its feelings concerning one or more of the statutory factors, Beasley still

prevails. The State cites to some of the trial court’s pronouncements at sentencing that it claims

demonstrate the trial court’s feelings concerning proportionality. Id. at p. 68. Those

pronouncements do not in any shape or manner satisfy the trial court’s duty to make findings

concerning proportionality. Id. The pronouncements which the State relies upon are almost

identical to the pronouncements that this Court in Bonnell found did not satisfy the required

proportionality analysis. Bonnell, at 219. In addition, the trial court’s findings as to the other

statutory factors do not cure its failure to make a finding as to proportionality. Id.

The State argues that “this omission in the sentencing entry can be remedied with a nunc

pro tunc entry.” State’s Merit Brief, p. 67. However, that is not a viable remedy in this case

because the trial court not only erred in the drafting of its sentencing entry, but it similarly erred

when it failed to make the requisite proportionality findings at the sentencing hearing. A nunc

pro tunc entry can be only be employed to reflect what a court “actually decided, not what the

court might or should have decided or what the court intended to decide.” State, ex rel. Fogle v.

Steiner, 74 Ohio St. 3d 158, 164, 656 N.E.2d 1288 (1965).

This Court should order this case remanded to the trial court for resentencing with respect

to the issue of consecutive sentences.

B. The Trial Court Improperly Imposed Court Costs. The trial court did not order Beasley at the sentencing hearing to pay court costs.

04/04/11 Tr. 7-9, 21-24. However, the trial court imposed court costs in its sentencing entry.

T.d. 631, p. 8. The trial court erred when it imposed court costs in its sentencing entry without

having previously imposed court costs at the sentencing hearing. State v. Joseph, 125 Ohio St.

3d 76, 80, 926 N.E.2d 278 (2010).

3

The State does not contest Beasley’s assertion that the trial court erred when it waited

until its sentencing entry to impose court costs. State’s Merit Brief, pp. 68-69. Accordingly, this

Court should remand the matter for resentencing with respect to the issue of court costs.

This Court should sustain both portions of this proposition of law and remand the matter

for resentencing.

4


A capital defendant’s rights to due process and a fair trial by an impartial jury are violated by the trial court’s denial of a motion for change of venue where there is pervasive, prejudicial pretrial publicity. U.S. Const. amends. V, VI, IX and XIV; Ohio Const. art. I §§ 5 and 16.

The State’s response brief is entirely dismissive of the probable effect that the media

sensationalism had on the jurors who were called upon to determine whether Richard Beasley

should be held guilty and subject to capital punishment as a consequence of what the media had

widely dubbed “the Craigslist murders.” This position entirely ignores the actual facts, including

that the investigation by law enforcement quickly went viral as soon as the Craigslist aspect of

the case became known. This position also ignores the fact that co-defendant Brogan Rafferty’s

trial (presided over by the same judge who later presided over Beasley’s trial) engendered its

own wide-spread notoriety and sensationalism, as Rafferty’s chosen defense essentially was to

name Beasley as the “mastermind” of a purported plot supposedly engineered by Beasley and

forced upon Rafferty. All of this played out in the print and electronic media months before

Beasley’s trial had even begun.

Media coverage of the Rafferty and Beasley trials soon became a media sensation. This

sort of media frenzy leading to “sensationalism” has been defined by the Oxford English

Dictionary as: “Especially in journalism, the presentation of stories in a way that is intended to

provoke public interest or excitement, at the expense of accuracy: media sensationalism.” See

www.oxforddictionaries.com/defintion/english/sensationalism (emphasis in original). This

definition describes the media coverage that enveloped Akron and Summit County before,

during, and throughout Beasley’s capital trial. While the State’s response brief opines that few

seated Beasley jurors actually admitted that their preordained views of Beasley’s innocence or

guilt had been biased by the sensationalism of the reporting about the “Craigslist murders,” in

5

reality the community was blanketed with these stories, many of which were penned and

published “at the expense of accuracy.”

This Court can take judicial notice that Rafferty’s trial ended with a conviction on

October 30, 2012, and that Judge Callahan sentenced Rafferty to a life sentence on November 9,

2012. Rafferty’s trial, conviction and sentencing pervasively were covered by print and

electronic media throughout the globe -- a quick sampling of a www.bing.com web search for

the phrase “Brogan Rafferty sentenced” yields 1,460,000 results. And Beasley, the co-defendant

and supposed “mastermind,” routinely was mentioned in these millions of media reports that

circulated widely before Beasley’s capital trial had even started, when jury selection began on

February 19, 2013. Beasley was tried and convicted in the vortex of media sensationalism,

especially as to electronic media, once Rafferty’s trial and sentence were concluded. Any

Summit County resident who was called upon to serve as a juror in Beasley’s later trial certainly

would have been hard-pressed to avoid the maelstrom of publicity generated by the Rafferty trial

conducted in the same county, and indeed before the same trial judge, just months before

Beasley’s trial commenced.

A bulwark of the United States Constitution from the time of the framers is the promise

of a fair trial. As the multi-dimensional media circus sought to cover the salacious details of the

“Craigslist case,” both during the police investigation and throughout the Brogan Rafferty trial

proceedings, Richard Beasley’s name inevitably was dragged through the mud and the muck,

with little regard to the fact that he had yet to be tried for the crimes in a court of law. Summit

County, Ohio indeed became “so saturated with the facts underlying this case that it [was]

impossible for [Beasley] to receive a fair trial before a jury composed of impartial persons who

[would] learn of the case only through the evidence properly admitted through trial.” (Motion

6

#32, Change of Venue). Trial defense counsel’s motion for a change of venue pursuant to Ohio

Crim. R. 18(B) should have been granted given this pervasive maelstrom of pretrial publicity.

Id. Beasley’s right to a fair trial could, in reality, not have been cured during the voir dire

process. (Response # 32, Change of Venue). Rather than move the trial to a locale less media-

obsessed with the myriad sensationalistic tales impacting the venire, the trial court, which had

already heard the Rafferty trial, opted to impanel a Summit County jury to determine Beasley’s

fate, with disregard for Beasley’s rights to a fair trial in a venue deluged by a torrent of media

focus on the supposed facts underlying the crimes. (Motions hearing, 11/09/2012, at Tr. 20).

A biased juror simply could not fairly apply the facts to the law and deliberate under the

constitutionally required burden of proof. See In re Winship, 397 U.S. 358 (1970). Fair play is

crucial in capital proceedings. See Morgan v. Illinois, 504 U.S. 719, 726-28 (1992); Sheppard v.

Maxwell, 384 U.S. 333 (1966). The Ohio Supreme Court has acknowledged that when a county

has been subjected to such extensive publicity about the case that a likelihood of prejudice is

evident, the trial court’s duty would be to transfer that case to another county. See State, ex rel.

Dayton Newspapers, Inc. v. Phillips, 46 Ohio St. 2d 457, 351 N.E.2d 127 (1976). The trial judge

has a “duty to protect [the accused] from [this type of] inherently prejudicial publicity . . .” that

renders the jury unfair in its deliberations. Sheppard, 384 U.S. at 363. Whether Beasley would

or would not have been convicted in another venue is not even relevant, because the right to a

fair and impartial jury is fundamental. See Arizona v. Fulminante, 499 U.S. 279, 290 (1991);

Reynolds v. United States, 98 U.S. 145 (1879); and Goins v. McKeen, 605 F.2d 947 (6th Cir.

1979).

Even though many jurors admitted that they had read, heard or discussed Beasley’s

involvement with Rafferty in the “Craigslist murders,” the trial court maintained its position that

7

Beasley could get a fair trial in Summit County, since these jurors duly recited their agreement

with the prosecutor or trial court that they somehow nonetheless could be fair and impartial.

Questions requiring jurors’ subjective evaluation of their ability to be fair and impartial,

however, consistently are held an inadequate basis upon which to assess jurors’ qualification.

Murphy v. Florida, 421 U.S. 794, 800 (1975). “[W]hether a juror can render a verdict solely on

evidence adduced in the courtroom should not be adjudged on that jurors’ own assessment of

self-righteousness without something more.” Silverthorne v. United States, 400 F.2d 627, 639

(9th Cir. 1968) (emphasis in original). See also United States v. Dellinger, 472 F.2d 340, 367

(7th Cir. 1972).

The trial court, before Beasley’s capital trial even began, had presided over the similarly

media-saturated trial of co-defendant Rafferty in Summit County, Ohio. That trial in a sense

served as the preliminary bout to the “main event,” as Rafferty’s counsel’s defense was largely to

blame Beasley for the various crimes. The trial court was fully aware of this reality, yet chose in

the later Beasley trial to rely upon the jurors’ professed self-assessments of their individual

abilities to provide what should have been a constitutionally fair trial to this capital defendant.

Absent a ruling granting a change of venue, Beasley’s constitutional guarantees under the Fifth,

Sixth and Fourteenth Amendments to the United States Constitution and Article I, §§ 5 and 16 of

the Ohio Constitution were violated. His resulting convictions and sentences rendered by a

biased jury must be vacated, and this case must be remanded for a new trial.

8


A capital defendant is denied his substantive and procedural due process rights to a fair trial when a prosecutor commits acts of misconduct during the opening statement and in allowing a biased juror to remain seated during his capital trial. The resulting sentence is arbitrary and unreliable. U.S. Const. amends. VI, VIII, XIV; Ohio Const. art. I, §§ 9, 16, 20.

Beasley was denied a fair trial because prosecutorial misconduct prejudicially affected

his substantial rights. State v. Smith, 14 Ohio St. 3d 13, 14, 470 N.E.2d 883 (1984). The

touchstone of the analysis “is the fairness of the trial, not the culpability of the prosecutor.”

Smith v. Phillips, 455 U. S. 209, 219 (1982). The State’s brief undervalues the probable impact

on the collective minds of the jurors as to the instances of prosecutorial misconduct that infected

Beasley’s capital trial.

A. The Invocation of Biblical References Delivered at the Onset of the State’s Opening Argument to the Jury Constituted Prosecutorial Misconduct.

The State’s response fails to recognize the crucial fact that the improper

statements to the jury invoking Biblical references began at the very onset of the State’s

opening argument, and indeed these remarks served as an invocation to the jury:

MS. PELPHREY: So, ladies and gentlemen, in preparing this opening statement I tried my best to think of a word or phrase that best describes the defendant, Richard Beasley. And the phrase that kept echoing in my mind after reviewing everything and preparing for this case was a wolf in sheep’s clothing. I wanted to be sure though before I put this in front of everybody that I truly understood what the wolf in sheep’s clothing means. So we probably used it at some point in our lives. So I did a little bit of research. As it turns out, the phrase originates from a sermon by Jesus reporting to Christians who – MR. BURDON: Excuse me, I hate to interrupt, but I object, your Honor.

Tr. 1268-69 (emphasis added).

9

This particular invocation by the State of Biblical references thus plainly was

designed to seize the jurors’ early attention and attempt to set their collective mindsets as

they determined guilt or innocence in this capital trial. The timing and tenor of these

remarks served as an invocation to the jury.

An “invocation” is defined as:

1) a: the act or process of petitioning for help or support; specifically often

capitalized: a prayer of entreaty (as at the beginning of a service of worship)

b: a calling upon for authority or justification

2) : a formula for conjuring : incantation

3) : an act of legal or moral implementation : enforcement

Merriam-Webster Dictionary, www.merriam-webster.com/dictionary/invocation

(searched 03/02/15).

The invocation that occurred here quickly and methodically conjured up the Bible

as additional authority for the jury’s overall consideration in assessing Defendant

Beasley’s legal and moral responsibility for the crimes that would be at issue during the

capital trial. The invocation, in short, invoked religion, and sought to convince the jurors

to adopt a religious stance as they considered any evidence that would follow.

“Beware of false prophets which come to you in sheep’s clothing, but inwardly they are ravening wolves.” King James Bible, “Authorized Version,” Cambridge Edition

By choosing this particular Biblical reference as the central theme of its invocation, the

State chose to paint the question of innocence or guilt in religious themes, obviously hoping this

theme would resonate with jurors throughout the trial and during their ultimate deliberations

concerning both guilt and punishment.

10

The seed was thus quickly planted, before trial defense counsel could stop the invocation

with a timely objection. And jurors were allowed to continue reviewing the image of a symbolic

“wolf in sheep’s clothing” as the attorneys and judge discussed how the resulting damage might

possibly be remedied. The State now argues in its response brief that the trial court cured the

problem by sustaining the objection and instructing the jury. The trial court instructed the jury to

“disregard anything that you saw or read [on the prosecutor’s power point display as to the “wolf

in sheep’s clothing” allusion].” Tr. 1274. However, the damage was done and beyond repair –

the jury had received the Biblical imagery through not just the power point presentation but also

through the words spoken by the prosecutor during this planned invocation. The so-called

“curative instruction” would not have erased these embossed images from the jurors’ collective

thoughts as they considered all the State’s evidence that followed.

The invocation tactic therefore worked, regardless of defense counsel’s objection and the

limiting jury instruction offered by the trial court. The jurors learned that the prosecutor wanted

them to learn – that the “wolf in sheep’s clothing” Biblical teaching somehow should serve as

apt analogy as they considered Beasley’s guilt or innocence. Tr. 1268-69. This message would

have remained imbedded with the jurors, despite removal of the power point slide and a limited

curative instruction. Thus, the jurors remained free to recall the prosecutor’s words and chosen

imagery, illustrating that under Biblical teachings, Beasley should be considered as an evil

person who masqueraded as a good person, and the jurors thus should beware of her warning as

to his supposed underlying evil.

Biblical references are singularly outlawed when intended to lead the jurors towards a

capital verdict. See Cauthern v. Colson, 736 F.3d 465 (6th Cir. 2013) (State’s closing argument

improperly invoked the Bible in an attempt to inflame the jury, writ of habeas corpus granted).

11

See also Farina v. Sec’y, Fla. Dep’t of Corr., 536 Fed Appx. 966 (11th Cir. 2013) (prosecutorial

misconduct and ineffective counsel claims resulted in reversal of capital conviction and remand

for a new sentencing hearing); Romine v. Head, 253 F.3d 1349 (11th Cir. 2001).

The Bible and other religious documents are considered codes of law by many in the contemporary communities from which Colorado jurors are drawn. … There can be little doubt that the Bible … is more authoritative to many typical citizens than the internet. See Jones v. Kemp, 706 F. Supp. 1534, 1560 (N.D. Ga. 1989).

People v. Harlan, 109 P.3d 616, 630-631 (Colo. 2005).

The State’s invocation deliberately chose to infuse a Biblical quote into the jurors’

domain at the very onset of Beasley’s capital trial. The State’s response brief fails to establish

that the jury was not infected by the introduction this early Biblical reference, despite the limited

attempt by the trial court to cure the imagery that had been painted by the prosecutor. Defendant

Beasley deserves a new capital trial that is free of such prosecutorial misconduct.

B. Prosecutorial Misconduct in Allowing Juror No. 5 to Hear Evidence from an FBI Agent Whom Juror No. 5 Disclosed to the Court He Knew Personally

The State’s brief fails to acknowledge or recognize the critical realities that occurred at

trial in the wake of Juror No.5 coming forward, of his own volition, to advise the trial court and

all counsel of his potential bias -- he had become friends with FBI agent Todd Wickerham

through the friendship of each of their daughters, and only recently learned that his friend

Wickerham soon would testify as a State’s witness against Beasley. Tr. 2064-2069.

When the trial court asked Juror No. 5 whether he might credit Wickerham as a truthful

and honest witness given this juror’s pre-existing friendship with him, Juror No. 5 gave an

admirably simple and sincere response: “I don’t know. I can’t answer that question until I hear

his testimony, to tell the truth.” Tr. 2068 (emphasis added). Juror No. 5 essentially advised the

trial court to check with him later, that after he heard his friend Wickerham testify as a State’s

12

witness, he would be in a better position to assess whether the pre-existing friendship between

the two would or potentially could make him a biased juror.

Juror No. 5, despite his self-disclosed reservations as to his potential unfair bias, was then

allowed to remain as one of those jurors who heard Wickerham testify as a State’s witness (and

assessed Wickerham’s credibility). This decision by the trial court was based upon a prosecution

promise to the trial court and defense counsel that Wickerham’s testimony would not raise the

sort of credibility concerns that Juror No. 5 would have to assess; rather, according to the

prosecution’s promise, Wickerham’s testimony would address only non-disputed facts. Tr.

2069-2070. Juror No. 5’s concerns in essence were dropped at this point, and the trial moved

forward with an admittedly potentially biased juror seated in the jury box.

Several other State’s witnesses testified before Wickerham was called to the stand. No

further colloquy about Juror No. 5 and the self-disclosed potential bias he harbored exists in the

trial transcript at the onset of Wickerham’s testimony, at any point during Wickerham’s

testimony, or at the conclusion of Wickerham’s testimony. And contrary to the earlier colloquy

in which the prosecutor assured the trial judge and trial defense counsel that Wickerham’s

testimony would not give rise to credibility concerns, Wickerham testified at length about his

detailed personal involvement in the investigation, over nearly 30 pages of trial transcript. Tr.

2758–2785. When Wickerham’s testimony eventually concluded, the trial court failed to

question Juror No. 5 as to whether his self-disclosured concerns about possible unfair bias had

been allayed or remained. Instead, the State simply moved on to its next witness, and Juror No.

5’s self-disclosed bias never again was addressed by the trial court. See Tr. 2785, et seq. And

Wickerham’s testimony was anything but peripheral or “non-disputed.” Wickerham described

his role as being “deeply involved” in the investigation. Tr. 2762. Wickerham detailed to the

13

jurors, including Juror No. 5, his various law enforcement activities throughout the investigation,

search for, and arrest of Beasley on the capital charges. Tr. 2758-2785.

Among the many details offered by Wickerham was an unprompted assertion made by

him to the jurors to the effect that the Akron Police Department had generated warrants for

Beasley’s arrest on issues unrelated to the charges at issue. Tr. 2766. The trial court promptly

reacted to trial counsel’s objection by agreeing that the testimony Wickerham offered through

this unsolicited assertion was improper, but the trial court simultaneously pre-empted further

defense counsel objections, flatly announcing: “I’m not going to go for this and give him

[Beasley] a mistrial.” Tr. 2767-2768. Thus, despite the argument made to the contrary by the

State’s response brief, Beasley’s counsel did not waive the opportunity to seek a mistrial –

instead, the trial court pre-empted the field by announcing that she would not grant any mistrial

motion, so there was no point in trial counsel even attempting to proffer a mistrial motion. This

is not a waiver; it is instead a preemptive ruling by the trial court that an objection would fail.

Wickerham, whose testimony had been projected as to cover “non-disputed facts” when

Juror No. 5 had raised his earlier concerns of juror bias as to their friendship, had to be

admonished that he must not again discuss his assertions as to non-related Akron warrants. Tr.

2768-69. When the jury was recalled, Wickerham simply continued his testimony, with no

curative instruction about the improper testimony Wickerham previously offered. Tr. 2769. And

to compound the problem, the trial court never inquired of Juror No. 5 whether his self-disclosed

concerns of potential unfair bias remained after having heard everything that Wickerham had to

say to the jurors. As far as we know, Juror No. 5 may well have concluded that his biases could

not have been overcome and he could not serve as an unbiased juror in Beasley’s trial, but

because the trial court never followed up on the potential bias, the question remains unresolved

14

to this day. In this instance, the burden lay with the trial court to assure Beasley’s rights to a fair

trial were preserved, in light of record evidence that a juror had disclosed potential unfair bias by

this State’s witness before he testified, and the juror’s concerns were ignored.

C. Conclusion. The State’s misconduct as to the invocation with its Biblical references and its failure to

pursue inquiry as to self-disclosed potential unfair juror bias by Juror No. 5 combined to deprive

Beasley of his rights as guaranteed by the Eighth and Fourteenth Amendments to the United

States Constitution, as well as Article I, §§ 9, 16 and 20 of the Ohio Constitution. Beasley’s

sentence must be vacated and his case remanded.

15

PROPOSITION OF LAW NO. 4 A trial court’s decision to allow a biased juror to sit on a defendant’s jury and participate in the deliberations to decide the defendant’s guilt and sentence violates the defendant’ Sixth Amendment right to an impartial jury. U.S. Const. amends. VI, XIV; Ohio Const. art. I §§ 5, 10.

Richard Beasley’s Sixth Amendment right to an impartial jury was violated when the trial

court allowed a biased juror to sit on his jury. Juror No. 5 notified the trial court in the middle of

Beasley’s trial that he was friends with one of the State’s witnesses, Todd Wickerham.

Wickerham had not testified yet. Juror No. 5 gave an equivocal statement “I don’t know…”

when asked whether he would give the Wickerham’s testimony more credence because they

were friends. Tr. 2068.2 The trial court never asked Juror No. 5 any follow-up questions to see

whether Juror No. 5 could set his opinion of Wickerham aside and decide Beasley’s solely case

on the evidence presented. Consequently, the trial court was left with Juror No. 5’s statement

that he did now know whether he could be an impartial juror.

The Sixth Circuit Court of Appeals has addressed this same situation in several cases and

has consistently found these jurors to be biased. In Hughes v. United States, the Court of

Appeals held that “[a] juror's express doubt as to her own impartiality … does not necessarily

entail a finding of actual bias.” 258 F.3d 453, 460 (6th Cir. 2001). But, the Sixth Circuit then

found that “express admission of bias, with no subsequent assurance of impartiality and no

rehabilitation by counsel or the court by way of clarification through follow-up questions

directed to the potential juror,” should lead to a finding of “actual bias.” Id. at 460. See also,

Wolfe v. Brigano, 232 F.3d 499 (6th Cir. 2000) (“Such statements, without more, are insufficient, 2 Beasley never claimed that Juror No. 5 made the statement “I think I could be fair” in reference to agent Wickerham and his testimony in this case. State’s Merit Brief p. 89. This instead was a quote from Miller v. Webb, 385 F.3d 666, 675 (6th Cir. 2004). See Beasley Merit Brief p. 36. The only statement Juror No. 5 gave when asked if he would find Wickerham’s testimony more credible based on their relationship was “I don’t know.” Tr. 2068.

16

… [t]he Sixth Amendment guarantees Wolfe the right to a jury that will hear his case

impartially, not one that tentatively promises to try.” Id at 503. Granting relief under habeas

corpus, the Sixth Circuit concluded: “Failure to remove biased jurors taints the entire trial, and

therefore, Wolfe's conviction must be overturned.” Id.

The State’s reliance on the holding in Johnson v. Luoma, 425 F.3d 318, 326 (6th Cir.

2005), that “[a]ctual bias is ‘bias in fact’ and focuses on the record at voir dire,” is misplaced.

State’s Merit Brief p. 89. Juror No. 5’s equivocal statement that he did not know if he could be

an impartial juror came out during the midst of trial proceedings, not during his voir dire.

The State’s reliance on State v. Treesh, 90 Ohio St. 3d 460, 739 N.E.2d 749 (2001),

Treesh v. Bagley, 612 F.3d 424 (6th Cir. 2010), and Miller v. Francis, 269 F.3d. 609 (6th Cir.

2001) similarly is misplaced. State’s Merit Brief p. 89. The juror in each of these cases was

asked follow-up questions by the trial court judges and in turn gave subsequent assurances of

impartiality. In Treesh, the juror stated that “her past affiliation with [the prosecutor’s] paralegal

course would not impair her ability to render a fair and impartial verdict.” 90 Ohio St.3d at 490.

In Miller, “[t]he trial court held a separate in camera examination of Juror Furrow…” and

“[w]hile Furrow expressed some discomfort about sitting on the jury, she consistently answered

that she could be fair.” 269 F.3d at 617.

The State’s reliance to State v. Hale, 119 Ohio St. 3d 118, 892 N.E.2d 864 (2008) is also

irrelevant to the considerations of this case. State’s Merit Brief p. 88. It is true that there is no

constitutional prohibition against jurors simply knowing the parties involved or having some

knowledge of the case. Id. But, the juror must still must “swear that he could set aside any

opinion he might hold and decide the case on the evidence.” Patton v. Yount, 467 U.S. 1025,

1036 (1984). The juror in question in Hale, unlike Juror No. 5 here, specifically stated that “her

17

acquaintance with Green would not affect her ability to be fair and impartial.” Hale, 119 Ohio

St. 3d at 150.

Follow up questions by the trial court to Juror No. 5 to ensure his impartiality, and a

subsequent statement from Juror No. 5 that he could be impartial and decide Beasley’s case on

the evidence presented, are missing in this case. Therefore, based on the Sixth Circuit Court of

Appeal’s precedent, Juror No. 5 must be deemed to be a biased juror. The obligation to empanel

an impartial jury lies in the first instance with the trial judge. Mu'Min v. Virginia, 500 U.S. 415,

423 (1991). “[T]he trial court's failure to ask these questions must render [the defendant’s] trial

fundamentally unfair.” Id. at 425-26.

The failure to assure that impartial jurors are seated on a capital defendant’s jury panel is

a structural error, and therefore it cannot be deemed harmless. “Among those basic fair trial

rights that can never be treated as harmless is a defendant's right to an impartial adjudicator, be it

judge or jury.” Gray v. Mississippi, 481 U.S. 648, 668 (1987). “Without these basic protections,

a criminal trial cannot reliably serve its function as a vehicle for [the] determination of guilt or

innocence, and no criminal punishment may be regarded as fundamentally fair.” Rose v. Clark,

478 U.S. 570, 577-78 (1986) (citing Powell v. Alabama, 287 U.S. 45 (1932)). Structural error

affects “the substantial rights of a criminal defendant, even absent a specific showing that the

outcome of the trial would have been different, and requires automatic reversal.” State v.

Martin, 103 Ohio St. 3d 385, 397, 816 N.E.2d 227 (2004).

By not asking Juror No. 5 any follow up questions to ensure his impartiality, the trial

court violated Beasley’s constitutional right to be tried by an impartial jury. Since this error is

structural, Beasley’s trial did not serve its function as a vehicle for the determination of his guilt

18

or innocence and his punishment cannot be considered fundamentally fair. Beasley is entitled to

an automatic reversal of this case and a new trial.

19


The accused’s right to confront witnesses against him is violated when testimony from an out of court declarant is admitted against the accused in a criminal prosecution, and the accused lacked a prior opportunity for cross-examination. The accused’s right to a fair trial is prejudiced when unreliable hearsay is admitted in a criminal prosecution against the accused. U.S. Const. amend. VI, XIV; Ohio Const. art. I, § 10; Ohio R. Evid. 403(A), 801(C).

By the time Beasley’s trial commenced with jury selection on February 12, 2013, the

trial court had already presided over the trial of co-defendant Brogan Rafferty, who was

convicted on October 30, 2012 and sentenced on November 9, 2012. Many of the same

witnesses who had appeared before the trial court in the Rafferty trial later re-appeared before

the same trial court in the Beasley trial. Thus, much of the testimony and exhibits put forward

by the State in its case against Rafferty was echoed to the trial court when Beasley’s case came

to trial. Regardless of any such repetition of evidence from the perspective of the judge who

heard both cases, Beasley had a Sixth Amendment right to confront those witnesses who testified

against him, yet that right repeatedly was derogated. The trial court often allowed the State to

offer hearsay evidence over objection, and often the trial court failed to state any rationale for

allowing the hearsay. This prejudiced Beasley’s right to a fair trial. See Crawford v.

Washington, 541 U.S. 36 (2004).

While the State’s response brief asserts that Beasley must identify clear distinctions

between hearsay and Confrontation Clause out of court testimonial statements, the United States

Supreme Court, post-Crawford, does not draw such a clear line as the State now posits: “[i]t

seems apparent that the Sixth Amendment’s Confrontation Clause and the evidentiary hearsay

rule stem from the same roots.” Giles v. California, 554 U.S. 353, 365 (2008), quoting Dutton v.

Evans, 400 U.S. 74, 86 (1970).

20

Many particular episodes that were part and parcel of a virtual stream of hearsay that was

permitted in Beasley’s trial were detailed in his initial brief to this Court, and are incorporated by

reference here rather than restated. A common theme emerged as to all of the State’s witnesses

who testified by hearsay. Beasley’s counsel would promptly object, then the trial court would

overrule the objection without explanation, then if an objection was repeated the trial court

would offer Beasley’s counsel a broad but undefined “continuing objection.” As a consequence,

the various forms of hearsay from State witnesses continued on course with little to no judicial

abatement of this pattern.

The trial court allowed a variety of out of court hearsay statements to be heard by the jury

when the State used this hearsay against Beasley. Conversely, the trial court sustained most of

the State’s hearsay objections. No explanation of this disparity was offered on the record by the

trial court (which very possibly had heard precisely the same evidence from the same State’s

witnesses during the Rafferty trial, particularly as to law enforcement witnesses who testified in

both trials). The State’s response brief points out specific instances of a failure to object to

hearsay by defense counsel, but the overall tone for the management of Beasley’s trial was set

and proscribed by the trial court, by the pattern of allowing or disallowing that is described

above (and in Beasley’s initial merit brief). And as noted in Beasley’s initial merit brief to this

Court, Ohio trial courts, as managers of the courtroom, are obligated to consider the potential for

abuse and jury confusion when hearsay is allowed to reach the jury, particularly if the hearsay is

proffered by the State as law enforcement “course of conduct” evidence (as often was admitted

against Beasley). See State v. Ricks, 136 Ohio St. 3d 356. 995 N.E.2d 1181 (2013).

Beasley was entitled to confront the witnesses against him, and the non-confronted

statements admitted against him were not harmless beyond a reasonable doubt. The

21

Confrontation Clause of the Sixth Amendment prohibits non-confronted testimonial statements,

yet the trial court failed to intervene to eliminate rampant hearsay that was both testimonial and

non-testimonial in character.

While the State argues that any improper hearsay admitted against Beasley was in the

nature of harmless error, on direct appeal, constitutional error is harmless only if the prosecution

proves it was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 26

(1967). Beasley’s Sixth Amendment right to confront witnesses against him was violated by the

admission of hearsay testimony by non-testifying declarants when Beasley had no opportunity to

cross-examine the persons making the hearsay statements. Even if some of the rampant hearsay

put on by State’s witnesses was not testimonial under the Sixth Amendment, it was nevertheless

unreliable and prejudicial to the opportunity for fair capital adjudication. Beasley should be

granted a new trial.

22


The acts and omissions of trial counsel deprived a defendant of a fair and reliable result in both phases of a capital trial. U.S. Const. amends. VI, XIV; Ohio Const. art. I §§ 5, 10.

The State began its response by reviewing the general case law concerning ineffective

assistance of counsel claims. State’s Merit Brief, pp. 112-114. That overview contains three

misstatements or omissions.

First, the State fails to recognize the critical component that counsel’s investigation plays

in the ineffective assistance calculus. Id. Defense counsels’ failure to conduct a reasonable

investigation deprives counsel of the “defense” that their decisions were “strategic.” When

counsel fails to interview witnesses and conduct a reasonable investigation, counsel’s inaction

constitutes “negligence, not trial strategy.” Workman v. Tate, 957 F.2d 1339, 1345 (6th Cir.

1992). The failure to conduct a reasonable investigation “does not reflect a strategic decision,

but rather an abdication of advocacy.” Austin v. Bell, 126 F.3d 843, 849 (6th Cir. 1997).

Beasley at the beginning of his ineffective assistance of counsel claim set forth the reasons that

counsel conducted an unreasonable investigation. See Beasley’s Merit Brief, pp. 54-55.

Second, the State claims that this Court must afford counsel wide leeway in their choice

of tactics. State’s Merit Brief, p. 113. That leeway shrunk in this case given the lack of

counsel’s investigation. Counsel’s tactics are only acceptable to the degree that they fall within

an objective standard of reasonableness. White v. McAninch, 235 F.3d 988, 995-997 (6th Cir.

2000). In addition, neither the prosecution nor the courts should engage in "post hoc

rationalization of counsel's conduct" to excuse deficient performance. Wiggins v. Smith, 539 U.S.

510, 526-27 (2003).

23

Third, the State claims that “Beasley failed to address the appropriate standard by which to

address prejudice.” State’s Merit Brief, pp. 113-14. This is simply incorrect. See Beasley’s Merit

Brief, p. 77.

Beasley will reply to the State’s arguments in the same manner and order that he raised the

points in his initial brief.

Trial Counsel Performed Deficiently

A. Counsel Deficiently Waived Beasley’s Presence.

The State focuses on the fact that trial counsel could waive Beasley’s presence even

without obtaining a waiver from him. See State’s Merit Brief, pp. 114-15. Beasley disputes that

assertion. See Beasley Merit Brief, p. 56; see also Cohen v. Senkowski, 290 F.3d 485, 490 (2nd

Cir. 2002); Valentine v. United States, 488 F.3d 325, 335 (6th Cir. 2007).

The State argues that “Beasley’s trial counsel were prudent, rather than ineffective, in

following the rule of Brinkley that they could, on behalf of their client, effect a waiver of his

presence.” State’s Brief, p. 115. The record does not disclose the reasons that counsel waived

Beasley’s presence. When the appellate record is unclear as to the reason that counsel adopted a

course of action, the appellate court should not speculate as to the reason. Wiggins, at 526-27.

This Court should instead defer to the post-conviction proceedings in which the court may entertain

testimony from Beasley and trial counsel on this issue. State v. Smith, 17 Ohio St. 3d 98, 101, n.1,

477 N.E.2d 1128 (1985).

B. Counsel Deficiently Failed to File an Affidavit of Disqualification.

The State cites the Chief Justice’s ruling in Beasley’s post-conviction case denying a similar

affidavit of disqualification. State’s Brief, p. 116. To the extent that ruling is deemed dispositive as

to Beasley’s direct appeal, then Beasley stands pat on the issue for purposes of federal review,

24

should Beasley have to pursue federal review of his convictions and death sentences. See Freeman

v. Lane, 962 F.2d 1252, 1259 (7th Cir. 1992); Greer v. Mitchell, 264 F.3d 663, 679 (6th Cir.

2001).

The State claims that this sub-claim of this proposition fails as to the performance prong,

on the theory that “Beasley’s trial counsel were prudent, rather than ineffective, in following the

rule of D’Ambrosio that they were not obligated to seek recusal of Judge Callahan merely

because she had presided over the earlier trial of co-defendant Brogan Rafferty.” The record

does not contain counsel’s reasoning (if any) for not seeking the recusal of Judge Callahan. This

Court should decline the State’s invitation to speculate as to counsel’s possible reasoning (if

any). Wiggins, at 526-27. This Court should instead defer to the post-conviction proceedings in

which the trial court may entertain testimony from trial counsel on this issue. See Smith, supra, at

101, n. 1.

C. Counsel Performed Deficiently in Voir Dire.

Beasley raised three components in this portion of his ineffective assistance of counsel

claim. See Beasley’s Merit Brief, pp. 59-66. He will again address each component separately.

1. Trial counsel unreasonably failed to challenge for cause Juror No. 5.

Beasley raised the sitting of Juror No. 5 in a separate proposition. See Proposition of

Law No. 4. In this alternative Proposition, Beasley asserts that trial counsel was ineffective for

not moving to either challenge for cause or exercise a peremptory challenge as to Juror No. 5.

The State contents that “trial counsel were not under a professional responsibility to seek

to excuse Juror No. 5.” State’s Brief, p. 118. This is incorrect. Counsel unreasonably failed to

challenge the seating of Juror No. 5 because they impermissibly deferred to Juror No. 5’s own

25

assessment of his impartiality. Beasley’s Merit Brief. p. 61. This error was compounded when

counsel permitted Juror No. 5 to use the wrong test when conducting his own self-analysis. Id.

Counsel also failed to object because they unreasonably relied on the State’s summary of

the witness’s testimony. Id. at 61-53. The State’s mischaracterization of witness Wickerham’s

projected testimony at least partially caused counsel’s ineffectiveness on this issue.

2. Trial counsel unreasonably failed to object to repeated misstatements of law.

The State concedes that a statutory provision prohibits informing jurors on the effect of a

guilty verdict as to one or more aggravating circumstances. See State’s Brief, p. 119. The State,

however, offers a convoluted interpretation of that statutory section. Id. The plain language of

R.C. 2929.03(B) simply prohibits the jury from being informed of the impact of a guilty finding

as to one or more aggravating specifications. The prohibition exists to ensure that a juror will

not let sentencing considerations enter his or her trial phase deliberations. Contrary to the State’s

position, asserted at State’s Brief, p. 120, defense counsel had a duty to ensure that this statutory

prohibition was followed.

The State adopts the position that it was permissible during voir dire for the trial court to

misinform the prospective juror as to the State’s burden in the mitigation phase. See State’s

Brief, pp. 120-21. The State offers no support for this proposition, so this argument is a non-

starter.

3. Trial counsel unreasonably failed to adequately develop facts supporting the exercise of both challenges for cause and peremptory challenges.

The State concedes that defense counsel did not question prospective jurors concerning

the factors supporting a sentence of less that death, as Beasley would later raise in the mitigation

phase. See State’s Brief, pp. 121-22. The State argues that the trial court was under no

obligation to permit this type of questioning. Id. at 121. That does not mean that the trial court

26

would have prohibited this type of questioning. Counsel was in a win-win situation here.

Beasley would have had a more sympathetic jury if counsel had attempted and been successful at

identifying those prospective jurors who could have kept open minds as to his sentencing factors.

To the extent that they were unsuccessful, and the trial court did not permit the necessary voir

dire, Beasley would have had a meritorious issue for review by the federal courts. Aldridge v.

United States, 283 U.S. 308, 310 (1931); Turner v. Murray, 476 U.S. 28, 36-37 (1986); Morgan

v. Illinois, 504 U.S. 719, 726, 728, 733-34 (1992).

The State contests Beasley’s summary of the voir dire of Juror Wieland. See State’s

Merit Brief, p. 123. Yet the State does not contest that Beasley’s trial counsel completely failed

to conduct voir dire of six jurors who sat for the trial regarding their exposure to pretrial

publicity. See Beasley’s Merit Brief, p. 66.

D. Counsel Performed Deficiently in the State’s Case in Chief.

1. Trial counsel unreasonably failed to object to improper testimony and argument.

a. The prosecution’s opening argument.

The State concedes that trial counsel properly objected to the misconduct of the

prosecution during opening statement. See State’s Merit Brief, pp. 123-124. However,

Beasley’s argument focuses upon counsel’s failure to request an effective limiting instruction,

given the tepid instruction that the trial court provided the jury concerning the prosecutorial

misconduct. See Beasley’s Merit Brief, pp. 67-68. Counsel performed deficiently when they

failed to request a limiting instruction. Commonwealth v. Chimel, 639 A.2d 9, 14 (Penn. 1994);

Ex parte Varelas, 45 S.W.3d 627, 630-36 (Tex. Crim. App. 2001).

The State claims that defense counsel performed adequately when they simply objected

to the misconduct as opposed to requesting a limiting instruction. See State’s Merit Brief, pp.

27

123-24. The State then suggests that Beasley unjustly seeks entitlement to some form of “best

practices.” Id. at 124. This characterization is neither accurate nor appropriate given the two

cases cited herein. Counsel recognized that the jury should not be able to consider the

prosecutor’s argument, yet they unreasonably failed to seek the necessary relief to the resulting

harm. The State mischaracterizes the cases cited by Beasley to support the deprivation caused by

this form of ineffective counsel. Id. Both cases specifically involved the failure of counsel to

request a limiting instruction, as occurred here.

b. Hearsay testimony

Beasley separately raised the substantive issues that the trial court improperly admitted

testimony in violations of both the Rules of Evidence and the Sixth Amendment Confrontation

Clause. See Proposition of Law No. 6. This issue is limited to those portions of the inadmissible

testimony to which trial counsel did not object.

The State has claimed that trial counsel failed to object to much of this inadmissible

testimony. See State’s Merit Brief, pp. 95-98. Counsel performed deficiently as to those

portions of the testimony, and this Court should find that counsel failed to preserve the errors for

appellate review, both as to violations of the Rules of Evidence and under the Confrontation

Clause.

The State argues that trial counsel’s lack of objections must have been the product of

tactical decisions, and offers several reasons that counsel may have chosen not to object. See

State’s Merit Brief, p. 126. The record before this Court does not reflect the reasons (if any) that

counsel did not object. The State’s suggested reasons are no more that post hoc justifications

based upon speculation. This Court should decline the State’s invitation to speculate as to

counsel’s reasoning (if any). Wiggins, at 526-27. This Court should instead defer to the post-

28

conviction proceedings, where the trial court may entertain testimony from trial counsel on this

issue. See Smith, supra, at 101, n. 1.

c. Other act testimony, the surveillance of the Hood property

The State, at some length, argues that defense counsel made a tactical decision not to

object to the testimony that the United States Marshals previously had the Hood property under

surveillance in an effort to apprehend Beasley. See State’s Brief, pp. 127-28. The record

contains some evidence that would indicate otherwise. Trial counsel’s cross-examination

attempted to limit the impact of the Sheriff’s testimony concerning the surveillance of the Hood

property as it related to Beasley. Tr. 1559-61.

As with the State’s other numerous claims involving purported tactical decisions made by

trial counsel, the record is entirely unclear as to the reasons counsel did not object. This Court

should abstain from addressing the issue, and permit the trial court in post-conviction to decide

this issue. That court can entertain testimony concerning counsel’s reasoning (if any) for failing

to object to this testimony.

The State cites the testimony of Beasley to argue that any error by counsel in failing to

object somehow was alleviated by Beasley’s own testimony. See State’s Brief, pp. 128-29.

However, if trial counsel had objected, and the court had sustained those objections, trial counsel

may well have advised Beasley not to testify. Again, this is an issue better sorted out in the trial

court in post-conviction rather than in this Court on direct appeal. The record before this Court

does not clarify counsel’s reasons for failing to object.

d. Other act testimony, Beasley’s prior criminal record

The State, as it has on most of the other evidentiary issues, claimed that counsel’s lack of

objection was a “strategic objective” to allow the jurors to hear about Beasley’s prior criminal

29

record. See State’s Brief, p. 130. If this was a strategic objective, counsel surely would not have

filed a pretrial motion to prelude the testimony in question. T.d. 201. And if this was a strategic

objective, counsel surely would not have tardily objected and explained that their failure to

earlier object was motivated by wanting to give the witness a “break.” Tr. 2766-67.

The State contends that a motion for a mistrial was not warranted here, on the purported

basis that the issue involved just a “snippet of testimony.” See State’s Brief, p. 130. However,

more than a snippet of the witness’ testimony was inadmissible. See Beasley Merit Brief, pp. 71-

72. Moreover, in assessing counsel’s failure to request a mistrial, this Court must consider the

other highly inflammatory, inadmissible testimony that the jury had previously heard. See

Beasley’s Merit Brief, p. 73. This inadmissible testimony was the testimony that literally put the

prejudice over the top, assuming that mark had not previously been reached.

e. Testimony concerning the handwriting analysis

The highly acclaimed study entitled authored by the National Research Council (U.S.),

Strengthening Forensic Science in the United States: A Path Forward, at pp. 163- 67 (2009),

found that “[t]he scientific basis for handwriting comparisons needs to be strengthened. Recent

studies . . . suggest that there may be a scientific basis for handwriting comparison . . . Although

there has been only limited research to quantify the reliability and replicability of the practices

used by trained document examiners, the committee agrees that there may be some value in

handwriting analysis.” (emphasis added).

The State latches onto the language that “there may be some value in handwriting

analysis.” State’s Brief, p. 131. However, that brief conclusion is entirely dependent on whether

more research will be conducted to test and to quantify the reliability and replicability of this

field of “expert analysis.” That testing should be conducted prior to trial, or the results should

30

only be admitted in a trial where a person’s life is not on the line, not in a capital trial situation,

as here. The “science” of handwriting analysis is too impure to be reliable and valid.

The State claims that trial counsel failed to object to the qualifications of this witness and

that in his merit brief Beasley did not highlight this failure to object. See State’s Merit Brief, pp.

131. It is unclear what impact, if any, that trial counsel’s objection would have had, given that

the trial court did not rule on the State’s motion to have the witness declared an expert. Tr.

3116.3 In addition, subsumed within Beasley’s claim that trial counsel should have objected to

the content of this witness’s testimony was that fact the trial counsel failed to object to the

qualifications of the witness.

2. Trial counsel conducted unreasonable cross-examination.

Beasley, in his merit brief, cited counsel’s numerous failures to cross-examine a variety

of State’s witnesses, or as to other witnesses, criticized counsel’s use of cross-examination in

such a way as to “rehash” the witness’s testimony on direct examination. The State adopts its

well-worn refrain, that the manner in which counsel conducted (or did not conduct) cross-

examination was all a matter of strategy. See State’s Merit Brief, pp. 132-37. In addition, the

State faults Beasley’s appellate counsel for not identifying those questions that trial counsel

should have asked. Id. Given the State’s claim of “strategy,” this issue is best decided by the

trial court in post-conviction review, where trial counsel and other relevant witnesses can be

called to testify. In an analogous area, this Court has held that where the claims of

ineffectiveness of counsel arose with respect to experts and witnesses not called to testify, the

post-conviction process is the best suited arena for the airing of these kinds of claims. See State

3 The State contends that counsel did not have a good faith basis to object, given that the witness had been declared an expert in ‘“over a hundred’ other cases.” See State’s Merit Brief, p. 131. This argument is tenuous at best given that the trial court did not recognize the witness as an expert in the area of handwriting analysis.

31

v. Carter, 89 Ohio St. 3d 593, 606, 734 N.E.2d 345 (2000); State v. Madrigal, 87 Ohio St. 3d

378, 390-91, 721 N.E.2d 52 (2000).

Trial Counsel’s Deficient Performance Prejudiced Beasley The State claims that Beasley has not sufficiently pled or supported his claim of

prejudice. State’s Merit Brief, 137-40. Beasley set out the requisite standard for establishing

prejudice both as to the trial and mitigation phases. See Beasley’s Merit Brief, pp. 77, 79-80. He

then asserted in some detail the manner in which the prosecution’s case would have looked much

different and much weaker if trial counsel had not committed the errors that constituted deficient

performance. See Beasley’s Merit Brief, pp. 77-79. This is the only way that a defendant can

demonstrate prejudice.

Ironically, the State made a similar argument to rebut Beasley’s claim of prejudice, only

shorter and in less detail. See State’s Merit Brief, pp. 138-40. The State made almost precisely

the same evidentiary arguments that Beasley has made as to prejudice, but with the opposite

goal, to demonstrate that Beasley was not prejudiced. Id. The State fails to explain any reason

for its premise that both sides should or could not employ the same type or argument with

respect to prejudice or its lack thereof.

32


A trial court denies a capital defendant’s right to allocution when the defendant is given an exceptionally limited opportunity to speak before the death penalty is imposed. U.S. Const. amends. V, VIII, XIV.

The State’s response brief inaccurately asserts that Beasley voluntarily declined to

exercise his right to allocution. Conversely, the trial transcript establishes that the trial court and

Beasley had very obviously failed to communicate on the question of the proper time for Beasley

to exercise his right of allocution. As opposed to putting the burden on a capital defendant to

know when the proper time in the proceedings would be to exercise the defendant’s right of

allocution, as the State’s brief seems to suggest, that burden is more properly assigned to the

judge presiding over the capital trial. The judge should have made certain that this capital

defendant understood precisely how and when he could exercise his right of allocution. Instead,

that right was diminished and minimized, given the clear communication breakdown between the

judge and the capital defendant that only the judge could have remedied, through taking the

necessary time to clarify the allocution process to Beasley. She did not.

Ohio R. Crim. P. 32(A) (1) confers an absolute right of allocution:

At the time of imposing sentence, the court shall do all of the following:

(1) Afford counsel an opportunity to speak on behalf of the defendant and address the defendant personally and ask if he or she wishes to make a statement in his or her own behalf or present any information in mitigation of punishment. Ohio R. Crim. P. 32(A) (1). This Court has vacated capital sentences where the trial court failed to effectuate the right

to allocution, as here. In State v. Campbell, 90 Ohio St. 3d 320, 738 N.E.2d 1178 (2000), this

Court firmly placed the burden on the trial court for any failure to fully advise the capital

defendant of allocution procedures. The Campbell trial court had, as here, given the capital

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defendant imprecise and confused guidance on when and how an allocution statement would be

permitted. The Campbell decision rejected State assertions of invited error by defense counsel,

stating that the burden or providing the right of allocution rested with the trial court, and “invited

error must be more than mere ‘acquiescence in the trial judge’s erroneous conclusion.’” Id., 90

Ohio St. 3d at 324, 738 N.E.2d at 1188, citing Carrothers v. Hunter, 23 Ohio St. 2d 99, 103, 262

N.E.2d 867, 869 (1970).

And this Court in Campbell further rejected the notion that the capital defendant had

waived his right of allocution by failing to raise an objection, stating again that the mandatory

responsibility of strictly enforcing the right of allocution rule was placed upon the trial court, not

upon the capital defendant. “The rule does not merely give the defendant a right to allocution; it

imposes an affirmative requirement on the trial court to ‘ask if he or she wishes to’ exercise that

right.” Campbell, 90 Ohio St. 3d at 324, 738 N.E.2d at 1188-1189. This Court explained that

the procedures in capital cases required “strict compliance” by the trial court and constituted the

“imposition of a mandatory obligation” upon the trial court to achieve that strict compliance. Id.,

citing State v. Filiaggi, 86 Ohio St. 3d 230, 240, 714 N.E.2d 867, 877 (1999); State v. Pless, 74

Ohio St. 3d 333, 658 N.E.2d 766, paragraph one of the syllabus (1996); and State v. Golphin, 81

Ohio St. 3d 543, 545-546, 692 N.E.2d 608, 611 (1998).

This controlling precedent establishes that as between the trial court and the capital

defendant, the burden of ensuring that the right of allocution properly is exercised lies squarely

with the trial court, which failed to protect the right of allocution here. After the mitigation

phase evidence had been presented, the trial court advised Beasley of his right of allocution.

Rather than waive that right, Beasley asked the trial court if he could defer his allocution until

after the victims had given their statements. Sentencing Tr. 5. The trial court implicitly agreed,

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but then proceeded to sentence Beasley on the capital murder counts, and imposed sentences of

death for each. Sentencing Tr. 7-9.

After the capital sentencing was completed (and after the victims’ families had given their

statements), Beasley, reminding the trial court that he had asked if he could defer his right of

allocution, asked the trial court: “Can I make a statement?” Sentencing Tr. 19. Without noting

specifically for the record that the capital sentencing had already occurred, and/or that Beasley

had somehow waived his right of allocution before the capital sentencing had been imposed, the

trial court simply advised Beasley that now would be the time for him to make a statement.

However, a mere seven sentences into Beasley’s attempted allocution, the trial court interrupted

him and curtailed his attempted right of allocution, explicitly cautioning that the trial court would

have no patience for any further attempts to allocate: “Mr. Beasley, if you want to address me

about sentencing on the remaining charges, you may. I am not going to sit here and retry this

case with you.” Sentencing Tr. 20 (emphasis added).

Finding himself chastised by the trial court in full view of the jurors, Beasley quickly

closed his attempted allocution, asserting his innocence and expressing sorrow to the families of

the victims. The entire allocution effort that the trial court allowed, absent the trial court’s

admonishment in the middle of Beasley’s attempted allocution, consisted of 14 sentences, and

less than two pages of court transcript. Sentencing Tr. 19-21.

The trial court’s expressed impatience with any delay in the proceedings may be

understandable, given that this had already been a lengthy capital trial. And this Court can take

judicial notice that the same judge previously had presided over the trial of Brogan Rafferty,

Beasley’s alleged co-defendant, so the judge at this point had heard two complete criminal trials

that alleged Beasley’s responsibilities for the crimes at issue. Yet whatever “battle fatigue” may

35

have set in, or whatever other possible reasons might be offered to explain the trial court’s

actions in denying Beasley’s right of allocution, the burden was upon the trial court, and the trial

court alone, to ensure that this right was preserved for this capital defendant. The trial court

failed this capital defendant by disallowing him the opportunity for any meaningful right of

allocution. Beasley’s death sentence must be vacated.

36


A criminal conviction that is not supported by substantial credible evidence will be reversed on appeal.

In this Proposition, Beasley mounted weight of the evidence challenges to his

convictions as to each of the four victims. See Beasley’s Merit Brief, pp. 99-108.

The State began its response by criticizing Beasley for attacking the State’s theory of the

case. See State’s Merit Brief, p. 153. The State cites to the portion of the jury charge in which

the jury was instructed that the arguments of counsel were not evidence. Id. This instruction

does not translate into a prohibition against challenging the State’s theory, especially when that

challenge is premised on the weakness of the evidence underlying the State’s theory. Ironically,

after the State spends a paragraph questioning Beasley’s right to challenge the prosecution’s

theory, the State spends the next two pages of its brief applauding the prosecution’s theory of the

case. Id. at pp. 154-55. The State cannot have it both ways, e.g., that Beasley is precluded from

challenging the prosecution’s theory, but the State in the same document is permitted to argue in

support of the prosecution’s theory.

A. The prosecution failed to produce substantial evidence linking Beasley to the murder of Ralph Geiger.

The State harps on the allegations that: 1) Beasley murdered Geiger to steal his identity,

and 2) to avoid the outstanding arrest warrants from the Ohio and Texas authorities who were

seeking Beasley. See State’s Merit Brief, pp. 163-68.

The State’s reliance on Beasley’s’ motive to murder is telling as to the strength (or lack

thereof) of the prosecution’s case as to Geiger. The argument concerning motive is entirely

dependent upon when Beasley came into possession of Geiger’s identification. Id. The State

emphasizes the frequency with which Beasley used Geiger’s identification. Id., at 163-64.

37

However, Beasley readily admitted having and using Geiger’s identification. Tr. 2896-98. The

critical issue is at what point Beasley obtained Geiger’s identification. The records reflect that

Beasley began to use Geiger’s identification almost seven months prior to Geiger’s death. See

Defense Exhibit A. These records from a recognized medical provider verify that an individual

using Geiger’s identification and who resided at Beasley’s home used the records in January,

2011. Id. This substantiated fact is more than “bare argument” (as the State contends) that

Beasley possessed Geiger’s identification well prior to Geiger’s eventual death. See State’s

Merit Brief, p. 167. Because Beasley had Geiger’s identification in January, 2011, he obviously

lacked the motive in August, 2011 to kill Geiger in order to obtain Geiger’s identification.

The State cites to testimony that Geiger, prior to his death, had told others that he had

obtained a job in southern Ohio. See State’s Merit Brief, p. 163. Geiger, however, told others

that he had obtained a job in Dover, Ohio. Tr. 1339. The town of Dover is not located in

southern Ohio. Thus, no evidence ties these statements to Geiger’s supposed intent in moving to

the Noble County caretaker job opportunity.

The State relies on testimony that Geiger’s body was found in the same area where

Pauley’s body was found and Davis was shot. See State’s Merit Brief, p. 164. That fact does not

support the conclusion that Beasley killed Geiger, especially given the weakness of the evidence

linking Beasley to the shooting of Davis and murder of Pauley. See Sections B and C, infra.

The State’s reliance on the testimony concerning the use of cell phones, see State’s Merit Brief,

pp. 163-64, is problematic given that the cell phones in question could not be linked to Beasley

and the murder of Geiger. Tr. 2750. The State’s citation to the testimony concerning Geiger

staying at the Best Western Hotel, see State’s Merit Brief, p. 163, suffers from the same

deficiency -- no evidence exists linking Geiger or Beasley to that hotel other than the name given

38

the hotel clerk. Tr. 1349-50. The prosecution failed to call the clerk to testify, from which it can

be inferred that either she could not recognize either Beasley or Geiger or that she had identified

someone else.

The prosecution failed to produce substantial evidence, by proof beyond a reasonable

doubt, linking Beasley to the death of Ralph Geiger.

B. The prosecution failed to produce substantial evidence linking Beasley to the murder of David Pauley.

The evidence linking Beasley to the death of David Pauley came primarily from the

testimony of Don Walters. But significant credibility issues arose with respect to the testimony

of this witness. See Beasley’s Merit Brief, pp. 104-05. The State did not address these

credibility issues. See State’s Merit Brief, pp. 158-63. The State’s silence on these issues is

telling. The State also did not address the total lack of physical evidence linking Beasley to

Pauley’s death. See Beasley’s Merit Brief, p. 105.

The State relies heavily on the testimony of BCI agents concerning the cell phone usage.

See State’s Merit Brief, pp. 161-62. However, that testimony is of little value because the agents

could not link the cell phones in question to Beasley. Tr. 2750. The State also cites the fact that

Pauley’s body was recovered in the same area that Geiger’s body was found and where Davis

was shot. See State’s Merit Brief, p. 159. The weakness of the prosecution’s case as to Pauley is

highlighted by the fact that the State must cite to the other murders as opposed to offering any

direct evidence that links Beasley to this murder. The jury was instructed that it must consider

each count separately. Tr. 3287-88. The State’s current argument, by “lumping the murders

together,” violates that instruction.

Finally, the State relies on testimony that Beasley was in possession of some of the

property that belonged to Pauley. State’s Merit Brief, p. 160. Beasley was an acquaintance of

39

Don Walters, who was found in possession of a great amount of property belonging to Pauley.

Tr. 1874, 1886-88, 1910-1911. Given this relationship, it was not surprising the Beasley

possessed some of Pauley’s property. Another friend of Walters, Larry Baker, was in possession

of Pauley’s truck. Tr. 2109. Apparently Walters was sharing Pauley’s property with numerous

individuals.


doubt, linking Beasley to the death of David Pauley.

C. The prosecution failed to produce substantial evidence linking Beasley to the attempted murder of Scott Davis.

The State argues that Davis’ eyewitness testimony “was powerful evidence of Beasley’s

guilt.” See State’s Merit Brief, p. 156. While normally that may be a correct statement

concerning the testimony of an eyewitness/victim, that is not an accurate statement as to the

testimony of Davis. When he was initially shot, Davis did not want the sheriff called, and

instead said that his friends would come to his assistance. Tr. 1438. When the Sheriff arrived

and talked to Davis, he determined that Davis’ initial statement was not truthful. Tr. 1487, 1535.

Davis refused to speak with the FBI for the first week after the shooting had occurred. Tr. 1524.

In his initial brief, Beasley cited to the fact that Davis was unable to identify him during

the early course of the investigation. See Beasley’s Merit Brief, p. 106. The State, at some

length, chides Beasley for pointing to Davis’ initial inability to identify him, because Davis

subsequently identified Beasley at trial and Beasley testified that he was with Davis on the day of

the shooting. State’s Merit Brief, pp. 156-57. The State’s lengthy argument misses the point.

Davis “flip flopped” on his ability to recognize Beasley, and this bore directly upon the

credibility of Davis’ testimony. Davis’ identification of Beasley was not the only time that his

recollection changed over time. Davis at trial testified that Beasley had a tattoo on his left arm.

40

Tr. 1469-70. But in his numerous pretrial statements, Davis did not mention any such tattoo. Tr.

1494.4 Similarly, Davis initially failed to remember that Davis had brought a firearm with him

on the day he was shot. Tr. 1503, 1557.


doubt, linking Beasley to the attempted murder of Scott Davis.

D. The prosecution failed to produce substantial evidence linking Beasley to the murder of Tim Kern.

The jury found that Brogan Rafferty murdered Tim Kern, not Beasley. Tr. 3488-90.

This finding was correct given that the firearm used to murder Kern was found in the possession

of Rafferty. Tr. 2214, 2233-34. In addition, Rafferty’s DNA was found on the murder weapon.

Tr. 2654. Beasley’s DNA was not found on the murder weapon. Tr. 2675. The investigators,

despite having a wealth of equipment and manpower at their disposal, could not locate any

forensic evidence linking Beasley to Kern’s death. Tr. 2055-56.

The weakness of the prosecution’s evidence becomes readily apparent when the State

begins its analysis by pointing to the shooting of Davis and the murder of Pauley in an effort to

bolster its case as to Kern. See State’s Brief, p. 168. However, the evidence linking those

murders to Beasley is suspect. See Sections B and C, supra. In addition, the manner in which

those offenses were committed is much different than the circumstances surrounding the murder

of Kern. The State claims that Beasley shot Pauley, while it claims that Rafferty shot Kern.

Unlike the bodies of the other two victims, Kern’s body was found fully clothed. Tr. 2058. Kern

4 Davis’ tardy recall of Beasley’s tattoo is even more problematic given that Beasley was wearing a long sleeve shirt on the day in question. Tr. 1505-06. Furthermore, Davis’ claim that Beasley and he compared tattoos is not borne out by the photographs taken from the security cameras at the Shoney’s Restaurant. Tr. 1506.

41

had five gunshots to his head, as opposed to the other two victims, who suffered from a single

gunshot to the head. Tr. 2083-84.

The State relies heavily on the testimony of Donald Walters, who Beasley supposedly

took to view Kern’s motor vehicle. See State’s Brief, pp. 169, 170. However, Walters’

testimony was suspect. Walters did not approach the investigating officers about Beasley, but

instead the investigating officers approached him. Tr. 1884. Walters was wearing David

Pauley’s pants when the agents arrived at Walters’ house. Tr. 1911. Walters stored in his own

attic some property that the prosecution claimed to the jurors was owned by Beasley. Tr. 1874,

1910. Walters admitted on cross-examination that he had lied in his initial statement to the FBI

to protect his friend and himself. Tr. 1900-05. Walters, later during his cross-examination, after

being repeatedly confronted with his initial statement to the FBI special agent, claimed that the

agent had incorrectly summarized the statement that he had given him. Tr. 1902-04. Finally,

Walters had given another stolen vehicle to his friend Baker, and then lied to cover up this

transaction. Tr. 1900-05.

The State relies heavily on the fact that Beasley met with Kern prior to his death. See

State’s Merit Brief, pp. 168-69. However, Beasley made no effort to hide this fact. If Beasley

was about to be involved in the killing of Kern, he certainly would have made a concerted effort

to hide his identity. The prosecution offered no evidence that connected Beasley to Kern after

they met once at the Waffle House.

The State failed to produce substantial evidence, by proof beyond a reasonable doubt,

linking Beasley to the murder of Timothy Kern.

42

E. Conclusion.

This State in its merit brief failed to effectively rebut Beasley’s challenges to the weight

of the evidence. This Court should sustain this Proposition of Law as to all four victims and

remand this matter for a new trial.

CONCLUSION

For each of the foregoing reasons and the reasons set forth in his merit brief, Richard

Beasley’s sentence must be reversed.

OFFICE OF THE OHIO PUBLIC DEFENDER /s/Tyson Fleming TYSON FLEMING – 0073135 Assistant State Public Defender Counsel of Record [email protected] RANDALL L. PORTER – 0005835 Assistant State Public Defender [email protected] DANIEL JONES – 0041224 Assistant State Public Defender [email protected] 250 E. Broad Street - Suite 1400 Columbus, Ohio 43215 Voice: (614) 466-5394 Facsimile: (614) 644-0708 COUNSEL FOR APPELLANT

43

CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing REPLY BRIEF OF APPELLANT

RICHARD BEASLEY was forwarded by electronic mail to Sherri Bevan Walsh, Summit

County Prosecutor, [email protected] and Stephen E. Maher and Thomas Madden,

Special Prosecutors, Office of the Ohio Attorney, [email protected] and

[email protected]

on this 25th day of March, 2015.

/s/Tyson Fleming TYSON FLEMING – 0073135 Assistant State Public Defender COUNSEL FOR APPELLANT

Documents

IN THE SUPREME COURT OF OHIO IN THE SUPREME COURT OF OHIO STATE OF OHIO, : Appellee, : CASE NO. 14-0313 -vs- : RICHARD BEASLEY, : Death Penalty Case Appellant. : _____ On Appeal from