State v. Pickens, 2010–1406.

Citation25 N.E.3d 1023,2014 Ohio 5445,141 Ohio St.3d 462
Decision Date16 December 2014
Docket NumberNo. 2010–1406.,2010–1406.
Parties The STATE of Ohio, Appellee, v. PICKENS, Appellant.
CourtUnited States State Supreme Court of Ohio

141 Ohio St.3d 462
25 N.E.3d 1023
2014 Ohio 5445

The STATE of Ohio, Appellee,
v.
PICKENS, Appellant.

No. 2010–1406.

Supreme Court of Ohio.

Submitted Aug. 19, 2014.
Decided Dec. 16, 2014.


25 N.E.3d 1030

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings, Assistant Prosecuting Attorney, for appellee.

Daniel F. Burke Jr. and Roger W. Kirk, Cincinnati, for appellant.

PFEIFER, J.

141 Ohio St.3d 462

{¶ 1} This is an appeal of right by defendant-appellant, Mark Pickens, who

25 N.E.3d 1031

was convicted of the aggravated murders of Noelle Washington, her nine-month-old son, Anthony Jones III, and three-year-old Sha'railyn Wright. A jury recommended the death sentence for the three murders, and the trial court sentenced Pickens to death.

141 Ohio St.3d 463

{¶ 2} For the following reasons, we affirm Pickens's convictions and sentence of death.

I. Trial Evidence

{¶ 3} Evidence introduced at trial showed that Pickens shot and killed Noelle and the two children in Noelle's Cincinnati apartment after Noelle reported to the police that Pickens had raped her two days earlier.

A. Noelle's and Pickens's relationship

{¶ 4} Noelle and Pickens began dating in February 2009. Noelle was planning, however, to end their relationship and move to Nashville, Tennessee, to live with her sister, Tamika Washington.

B. The rape

{¶ 5} Around 10:30 a.m. on May 31, 2009, Noelle went to Pickens's residence at Gateway Plaza Apartments in Cincinnati. About an hour and a half later, Noelle stumbled into the hallway, apparently pushed out, her pants below her hips. Noelle went to a neighboring apartment, pounded on the door, and screamed for help.

{¶ 6} Darlene Tucker lived in that apartment. Tucker testified that Noelle beat on her door, screaming, "[P]lease, help me, let me in before he gets me." Tucker opened the door and let Noelle inside. Noelle was hysterical and said that her boyfriend had a gun and had raped her. Tucker said that Noelle's hair was messy, she was sweating profusely, and she kept pulling up her pants around the waist. At Noelle's behest, Tucker called 9–1–1.

{¶ 7} At 12:30 p.m., Officer Marian Jenkins of the Cincinnati police met with Noelle at Tucker's apartment. Noelle said that she had been raped by Mark Pickens and described what happened. Noelle said she had gone to Pickens's apartment to have sex with him. But when Pickens started acting "funny," she decided that she did not want to have sex. Noelle told Pickens, "[N]o, no, I am not staying. I don't want to." Noelle said that Pickens then pulled out a gun and laid it on the bed. Noelle said that they then had sex. Afterwards, Pickens left the building but Noelle did not know where he went. Noelle was then transported to the police department.

{¶ 8} At 1:20 p.m. on May 31, Detectives Chris Schroder and Stephanie Broxterman conducted an audio-taped interview of Noelle. Noelle stated that she went to Pickens's apartment at his invitation. According to Noelle, they talked at first and then started wrestling around. But he started playing rough and she told him to stop. Noelle told Pickens that she was going to leave, and Pickens told her, "I was fixing to get some pussy." Noelle repeated that she "didn't want to do it" and wanted to leave. Pickens replied, "[Y]ou ain't about to

141 Ohio St.3d 464

leave. We about to do it." Noelle said that Pickens then took a gun out of the dresser drawer and placed it on top of the dresser. He then started taking off Noelle's clothes.

{¶ 9} Noelle stated that she told Pickens that she needed to use the bathroom. But Pickens followed Noelle there and forced her back into the bedroom. Pickens then resumed removing her clothes, got on top of her, and had vaginal sex with her. When they finished, Noelle said that Pickens "started hitting me around." With the gun in his hand, he told Noelle, "I am going to kill us both and take us out of our misery."

25 N.E.3d 1032

{¶ 10} When Noelle told Pickens that she was calling the police, Pickens tried to take her phone from her. He pulled her hair, choked her, and punched her until he got the phone. Pickens then pushed Noelle into the hallway and continued hitting her. Noelle said that she grabbed the phone from him, thinking that it was hers, but she later discovered that she had taken Pickens's phone.

{¶ 11} Noelle stated that she and Pickens had exchanged text messages since the rape. Noelle said that Pickens asked her why she had called the police and asked her if she was "going to try to set [him] up." Noelle also said that Pickens's mother had called her after the rape and told her that Pickens knew that Noelle had been with the police.

{¶ 12} During follow-up questioning, Noelle said that Pickens had hit her approximately 25 times and struck her in the face three times. Noelle said that she had been wearing only a t-shirt when she was pushed into the hallway, and she got dressed inside the neighbor's apartment.

{¶ 13} During the interview, Noelle agreed to call Pickens and confront him about the rape. During the recorded phone call, Noelle confronted Pickens and asked, "Why did you have sex with me when you know that I didn't want you to?" Pickens responded, "I didn't have sex with you." Despite continued accusations, Pickens said repeatedly that he had not had sex with Noelle or hit her. During the conversation, Pickens said, "You * * * put a warrant out on me." Noelle replied, "No, they wanted me to talk to them but I didn't. I love you." But Pickens said, "You was talking to them. You told them everything."

{¶ 14} Following the police interview, Noelle went to the hospital for a rape exam. Kathleen Ferrara, a sexual-assault nurse examiner, examined Noelle. Noelle told Ferrara that she went to Pickens's apartment because he owed her money. Noelle said that Pickens started playing rough and insisted on having sex. Noelle told him that she did not want to have sex, and he started hitting and choking her. Noelle said, "I closed my legs together, but he pried them open. I was crying, telling him to stop." He then started "doing it" to her.

141 Ohio St.3d 465

{¶ 15} Ferrara's examination showed that Noelle's lip was swollen and she had a bite mark on the right upper lip. There were also lacerations on her neck that were consistent with scratching. Ferrara also observed a laceration and bite mark on Noelle's chest, a laceration on her shoulder, a bite mark on her right thigh, and bruises on her left inner calf and left knee. Ferrara testified that these were fresh injuries that were consistent with Noelle's statement that Pickens had pried her legs open. Noelle suffered a laceration to her right inner labia that was approximately three centimeters long and a laceration to the left inner labia that was approximately two centimeters in length. Ferrara testified that these injuries were "consistent with someone that is not * * * having consensual sex."

{¶ 16} At 10:44 a.m. on June 1, 2009, Schroder and Broxterman went to Pickens's apartment to question him. Schroder knocked on Pickens's door and received no answer. Schroder then wrote "please call me" on the back of a business card and left the card in the door.

C. Events between Noelle's rape and her murder

{¶ 17} Crystal Lewis, Noelle's friend and Sha'railyn Wright's mother, testified that on the afternoon of May 31, she talked to Noelle on the phone. Noelle said that she was at the hospital because "Mark raped me" and "hit me" and left "marks

25 N.E.3d 1033

and bruises all over my body." Noelle also thought that Pickens had her house keys because she left them at his apartment.

{¶ 18} Gwendolyn Washington, Noelle's mother, testified that on the afternoon of May 31, she was with her son, Derrick Lee. During that time, she received a text message from Noelle's phone stating, "This MARK I DO NOT WANNA BE WIT YO DAUGHTER." Derrick testified that on that same afternoon, Noelle called him. Noelle was crying and kept repeating that "he raped me." Noelle also talked to her mother and told her that Pickens had raped her and that she was at the hospital.

{¶ 19} Tamika Washington, Noelle's sister, testified that on May 31, Noelle called screaming, "[H]e beat me up, he beat me up," and hung up. Tamika then called Noelle's phone number, and a male answered. He stated, "You fat bitch, quit calling the phone," and hung up. At that point, Tamika started sending text messages to that phone number. Tamika testified that one of the return text messages stated, "Noelle was only good for sucking his dick, he didn't care about her, the only thing she did after he hurt her feelings she would run to me and cry to me." Tamika then called him and said, "You are going to jail, you are going to jail." He responded,...

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