The State Of Ohio v. Fry
| Decision Date | 23 March 2010 |
| Docket Number | No. 2006-1502.,2006-1502. |
| Citation | 2010 Ohio 1017,926 N.E.2d 1239,125 Ohio St.3d 163 |
| Parties | The STATE of Ohio, Appellee,v.FRY, Appellant. |
| Court | Ohio Supreme Court |
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Sherry Bevan Walsh, Summit County Prosecuting Attorney, and Heaven DiMartino, Assistant Prosecuting Attorney, for appellee.
David L. Doughten, Cleveland, and George C. Pappas, for appellant.
{¶ 1} This is an appeal as of right of defendant-appellant Clarence Fry, who has been sentenced to death for the aggravated murder of Tamela Hardison.
{¶ 2} Count One charged Fry with the aggravated felony murder of Tamela Hardison while committing aggravated burglary and/or burglary, R.C. 2903.01(B). Count One included two death-penalty specifications: murder while committing, attempting to commit, or fleeing after committing aggravated burglary, R.C. 2929.04(A)(7), and murder to prevent Hardison's testimony in another criminal proceeding or in retaliation for her testimony in any criminal proceeding, R.C. 2929.04(A)(8).
{¶ 3} Count Two charged Fry with aggravated murder by purposely killing Hardison with prior calculation and design, R.C. 2903.01(A), and Count Three charged him with felony murder, R.C. 2903.02.
{¶ 4} Fry was also charged with six additional counts: Count Four-aggravated burglary, Count Five-domestic violence on July 18, 2005, Count Six-domestic violence on July 31, 2005, Count Seven-tampering with evidence, Count Eight-intimidation of a crime victim, and Count Nine-menacing by stalking.1
{¶ 5} Fry pleaded not guilty to all charges and specifications. The jury found him guilty of all charges, and he was sentenced to death.
{¶ 6} We affirm the convictions and sentence of death, but remand for imposition of postrelease control pursuant to R.C. 2929.191 on the sentences for domestic violence, tampering with evidence, intimidation of a crime victim or witness, and menacing by stalking.
{¶ 7} The state's case revealed that early on July 18, 2005, Fry and Hardison had an argument and a fight in the Akron apartment where they lived. Akron police officers Michael Rinn and Matthew Hackathorn arrived at 12:56 a.m., found Hardison injured and frightened, and arrested Fry.
{¶ 8} Hardison filed charges against Fry for assault and aggravated menacing, both first-degree misdemeanors, and also sought a criminal stalking protection order. Later that day, Hardison went to the emergency room at Akron City Hospital, where one arm was put in a cast and she was treated for pain and bruises. She told Donnell Juersivich, a victim-assistance advocate, that she intended to follow through with the charges against Fry.
{¶ 9} The same day, Fry was arraigned in Akron Municipal Court on charges of assault and aggravated menacing. His bond was set at $10,000, ten percent. Fry was already on probation for a domestic-violence conviction. He had signed rules of probation stating that any new conviction would be a probation violation and could result in reimposition of his previously suspended prison sentence.
{¶ 10} While he was in the Summit County jail, Fry made numerous phone calls, which were recorded by the jail. Before arraignment, Fry talked to his mother about the charges and whether his probation might be revoked. Fry asked his mother to call Hardison and tell her, Fry mentioned that he was supposed to see his probation officer that Tuesday and worried that he might not be released on a signature bond. he said.
{¶ 11} After the arraignment, Fry asked his mother to call Hardison again and “tell her to call them people and squash that.” Fry also mentioned that he was being evicted from his apartment.
{¶ 12} Fry talked to Hardison on the afternoon of July 18. He repeatedly asked Hardison to drop the charges so he could get out of jail. Before ending their call, Fry told Hardison, “You better quit fucking with me.” He said, “You have got to talk to that lady * * * you tell her that them people coerced you into signing that thing.”
{¶ 13} Later that day, Fry told Hardison again to get him out of jail. During this conversation, Fry said, “My record is so fucked up and violent.” Fry told Hardison to say that “[t]he police scared [her] * * * into saying things.” Hardison agreed to say, “The police scared me * * * because they had guns in my face.” Fry said, “Good.”
{¶ 14} In a call on July 21, Fry told Hardison that he had paperwork she signed saying that he had assaulted and threatened to kill her. He said, “I got two of them under my belt * * * toe tags.” Fry explained that this comment meant that he had killed two people. Fry then told Hardison to “fix this, fix this.” He said,
{¶ 15} Hardison's friend Robin Brooks testified that on some date after July 18, Hardison and Brooks went to the apartment and retrieved Hardison's clothes, a stereo, a microwave, and some dishes. Brooks testified that Hardison did not take any male clothing or a TV from the apartment. Hardison left her property with a friend who owned a furniture business. Brooks did not know whether Hardison was paid for the property.
{¶ 16} Fry's bond was modified on July 25 to a $10,000 signature bond on the condition that he would have no contact with Hardison. Fry was also placed on day reporting. A new pretrial date was set for August 4, 2005, and he was released later that day.
{¶ 17} The next day, Fry went to the Akron Police Department and told Officer Mychal Brown that he had been released from jail for domestic violence and wanted to report a theft of property by his girlfriend. Brown told Fry to make a police report and not return to the apartment without the police.
{¶ 18} Juersivich, the victim-assistance advocate, testified that on July 28, she received a “hot line” call from Hardison, who was upset and afraid after learning that Fry had been released from jail.
{¶ 19} Hardison spent the night of July 30, 2005, at her daughter Nikita Knox's home at 824 Ina Court in Akron. On the morning of July 31, the daughter left for work, and Hardison remained to babysit for her daughter's three children: Jasown Bivins, age five, Jaion Bivins, age three, and Demeatrionia Blackwell, age two.
{¶ 20} The Knox home was the property of the Akron Metropolitan Housing Authority (“AMHA”). Fry had been banned from entering AMHA property between February 14, 2005, and February 14, 2006, for having no bona fide reason to be there, but had violated this ban at least twice. In the early afternoon of July 31, Fry went to the Knox home. Jasown was playing outside with his brother Jaion and a friend, eight-year-old Maurice Vinson. Jasown and Vinson testified that they saw Fry walking through the courtyard toward the back of the Knox home. Fry was wearing a yellow sleeveless shirt and carrying an empty bowl and a long butcher knife. Jasown asked Fry why he was going into the house, and Fry said, “[T]o cut potatoes.” Jasown followed Fry into the home.
{¶ 21} According to Jasown, Fry went into the living room, where Hardison was watching TV and Demeatrionia was sleeping on the couch. Jasown heard Fry ask Hardison, “Where are my clothes?” Jasown then saw Fry “cut” Hardison with the knife. Hardison told Jasown to call the police. Jasown tried, but Fry kept taking the phone from him. Fry was at the home no more than five minutes.
{¶ 22} Vinson, the eight-year-old, testified that he saw Fry “speed walking” as he left the home carrying the knife and bowl. At about the same time, Jasown ran to Vinson's home and screamed that his grandmother had been killed. Tanya Magrell, Vinson's mother, testified that she then called 9-1-1. On the 9-1-1 tape, Jasown can be heard identifying “Clarence” as the killer.
{¶ 23} Akron patrolman Anthony Sutton arrived at the Knox home at approximately 1:00 p.m. Sutton testified that he found the side door partially open. Inside, he found Hardison's body on the living room couch and Demeatrionia cuddled against her. A paramedic determined that Hardison was dead.
{¶ 24} Fry was quickly identified as the primary suspect in Hardison's killing. Police searched the area for Fry but were unable to find him. They were also unsuccessful in their search for a murder weapon. On August 3, 2005, Fry was found and arrested in Charleston, West Virginia.
{¶ 25} Corporal Keith Peoples, a Charleston police officer, transported Fry to the police station. Peoples testified that Fry did not complain of any injuries and that he did not notice any injuries to Fry's head.
{¶ 26} While awaiting extradition to Ohio, Fry made several phone calls from the Charleston jail to his mother. The recorded calls were entered into evidence. On August 9, Fry said, Fry continued,
{¶ 27} Following Fry's extradition to Ohio, Akron Detective Michael Shaeffer conducted a tape-recorded interview of Fry. After waiving his Miranda rights, Fry stated that Hardison had confiscated all his belongings from his apartment while he was in jail and had taken them to a consignment store to be sold. Fry also said that Hardison had taken a TV that she had stolen from her daughter. He then put “the word out” that Hardison “stole her daughter's stuff, stole [his] stuff.” Fry stated that he was not carrying a knife when he went to the Knox home. Instead, he got the knife from the kitchen to cut the noodles that he had been eating...
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