State v. Barton

Citation108 Ohio St.3d 402,2006 Ohio 1324,844 N.E.2d 307
Decision Date05 April 2006
Docket NumberNo. 2003-2036.,2003-2036.
PartiesThe STATE of Ohio, Appellee, v. BARTON, Appellant.
CourtUnited States State Supreme Court of Ohio

Rachel Hutzel, Warren County Prosecuting Attorney, Andrew L. Sievers, and Derek B. Faulkner, Assistant Prosecuting Attorneys, for appellee.

Christopher J. Pagan and Chris McEvilley, for appellant.

O'DONNELL, J.

{¶ 1} Rocky Barton appeals from a judgment of the Warren County Common Pleas Court entered pursuant to a jury verdict finding him guilty of the aggravated murder with prior calculation and design of his 44-year-old wife, Kimbirli Barton, and of a firearm specification. Separately, the court found him guilty of the death-penalty specification for a prior attempted-murder conviction and accepted his guilty plea to the charge of having a weapon while under a disability. Barton also appeals from those convictions and from the sentence of capital punishment entered in accordance with the recommendation of the jury.1

{¶ 2} On appeal, Barton presents four propositions of law, alleging that the trial court failed to adhere to our dictate in State v. Ashworth (1999), 85 Ohio St.3d 56, 706 N.E.2d 1231, regarding his waiver of the presentation of mitigating evidence during the penalty phase of his capital-murder trial; that the court erred in failing to order an evaluation of his competency after his waiver of mitigating evidence and his attempted suicide; that the court denied his right to counsel by precluding him from presenting an unsworn statement in a question-and-answer format; and finally, that the state improperly indicted him for having a weapon while under a disability. Upon review, we reject each proposition of law and therefore affirm his convictions. Further, upon reviewing and independently weighing all the facts and other evidence in the record and considering the offense and the offender, we have determined that the aggravating circumstance — his prior attempted-murder conviction — outweighs the mitigating factors in this case and that the sentence of death is appropriate. And after conducting a proportionality review of the death penalty in conformity with R.C. 2929.05, we affirm the judgment of the trial court regarding the imposition of sentence.

{¶ 3} Kimbirli and Rocky Barton had known each other for many years and married on June 23, 2001, during his incarceration for attempted murder in Kentucky. Following his release from prison in 2002, he lived in a Warren County farmhouse on Bellbrook Road owned by his father, Donald, with Kim and Jamie, her 17-year-old daughter from a prior marriage.

{¶ 4} Barton and Kimbirli generally had an amicable relationship and planned to renew their wedding vows in May or June 2003. Tiffany, Kim's 22-year-old daughter from a prior marriage, described Kim's relationship with Barton as "[s]ometimes good, sometimes bad, the highs were very high, the lows were really low." Julie, Kim's 27-year-old daughter from a prior relationship, also described Kim and Barton's relationship as "up and down. * * * [R]eally good [or] really bad."

{¶ 5} Tiffany described Barton as "[v]ery moody, possessive, * * * controlling[,] * * * just very manipulative." Julie also thought Barton could be, at times, "very jealous, very controlling, very manipulative, always accusing [Kim] of things, causing fights." Jamie agreed that Barton acted "controlling and possessive," although she felt close to him and described him as the only father figure that she could depend upon.

{¶ 6} On January 16, 2003, the morning of the murder, Barton awakened Jamie at 7:20 a.m. and told her to get her things together: "You're going to Tiff's house. The wedding's off. Your mom's a psycho bitch." Barton then drove Jamie to Tiffany's home and told Tiffany that her mother "had gone off the deep end and that she was crazy and she was leaving him." Jamie described Barton as acting "[r]eally strange" and "aggravated."

{¶ 7} Around 7:30 that morning, Kim arrived at Lasik Plus, where she worked as a technical assistant. Karla Reiber and Molly Wolfer, her co-workers, recalled that Barton had called more than six times that morning. He insisted on being placed on hold while Kim tended to patients, often for as long as 10 or 15 minutes, until she became available. Reiber described Barton as "very angry," and Wolfer described him as "very agitated, very angry," and "very irate."

{¶ 8} After speaking with Barton on the phone around 10:30 a.m., Kim related to co-workers that she had heard shots fired. She told others that she had heard a "bang" over the phone. Police later recovered a spent shotgun shell in a bedroom at Barton's home, which supported her suspicion that Barton had fired a shotgun while talking with her on the telephone.

{¶ 9} Wolfer described Kim as crying, "very frantic," and "very scared" when she left work around 10:30 a.m. Before leaving, Kim called Tiffany and asked whether she and Jamie could live with her temporarily. Tiffany described her mother as hysterical, frantic, and scared and agreed to have her mother and sister move in with her.

{¶ 10} Barton also talked on the telephone with several others that day. Around 7:45 a.m., he left a message with his employer, saying that he would not be at work that day because of a family emergency. Around 10:45 a.m., he spoke with his supervisor, Carol Williamson, and informed her that Kim had been "acting strange" due to her medication and that Kim intended to leave him.

{¶ 11} Barton also called Randy Hacker, Julie's former husband, and complained about Kim and Julie. Barton seemed "edgy" and "irritated," according to Hacker, and left Hacker a message, saying, "[B]efore I go on to my demise, I should call you." In a later call, Barton informed Hacker that Kim intended to move out and that he would be going back to jail.

{¶ 12} Barton also spoke on the telephone several times that day with Glen Barker, an insurance agent. Barker has a background in counseling, and he offered to serve as a mediator between Barton and Kim. Barton visited Barker at his office around 9:30 a.m. and seemed calm and quiet, but Barton was anxious to speak with his father, who was in Florida. Barker called Kim at work on Barton's behalf, but Kim would not discuss the matter. Barker testified that Barton adamantly refused to allow Kim to collect her possessions from their house.

{¶ 13} Barton's father, Donald, talked with Barton and Kim from Florida that morning in an effort to defuse the situation. Donald told Barton not to worry because anything that Kim might take from the farmhouse could be replaced, and he informed Kim that she could keep his car, which she currently drove. Larry Barton, Barton's uncle, also spoke with Barton several times by telephone on the day of the murder, and he offered assistance. Barton told Larry that he thought the police would be called, and he vowed that "he wouldn't go back to jail."

{¶ 14} Around 11:00 a.m., Kim arrived at Tiffany's home. Barton called 25 or 30 times; Jamie and Tiffany overheard Barton cursing and yelling on the telephone and described his voice as "scary." Jamie overheard him tell Kim, "I'm going to kill you, you f* * *ing bitch," causing Kim to become "really nervous and scared" while "crying and shaking."

{¶ 15} Around 3:00 p.m., Kim and Jamie made plans to return to their Bellbrook Road home to retrieve some clothing and personal effects. When Larry arrived at Tiffany's house, however, he strongly advised Kim not to go home. She agreed to stay away but gave Larry a list of things that she and Jamie wanted him to retrieve.

{¶ 16} Immediately after Larry left to retrieve the items, Barton called again and persuaded Kim and Jamie to come to Bellbrook Road to obtain their things. When Larry arrived at Bellbrook Road, Barton had locked the gate, something he rarely did. Larry asked Barton to open the gate, but Barton absolutely refused to allow him onto the property. He kept saying, "I've lost it." Barton stood near his own truck behind the locked gate while Larry's truck remained parked on the road.

{¶ 17} When Kim and Jamie arrived, however, Barton unlocked the gate and instructed Larry to lock it after they entered because he did not want "the police * * * coming in." Then Barton got in his truck, backed up "real fast" into the garage, and closed the garage door. Larry and Kim separately drove onto the property.

{¶ 18} As Kim got out of the car and turned to shut her door, Barton came out the side door of the garage with a shotgun. As he ran toward Kim, he yelled "You aren't going anywhere, you f* * *ing bitch," and he then fired the shotgun while four to six feet from her and struck her in her side. Feeling the impact, Kim fell, but moved toward her daughter, yelling, "Oh, Jamie, Oh Jamie." As Jamie reached for her mother, Barton shot her in the back from a distance of one to two feet. Kim fell to the ground, while Jamie screamed, "Mom, can you hear me? Can you hear me? Please stay with me, mommy, please stay with me." Barton then aimed the gun at Jamie's head and at Larry. Barton next walked to the side of Larry's truck and said, "I told you I was insane," dropped to his knees, and shot himself in the face. Barton then walked into the house.

{¶ 19} Jamie and Larry called 911. Emergency Medical Services ("EMS") personnel arrived and upon examining Kim found her ashen in color, not breathing, and with fixed and dilated pupils and no pulse. Following an autopsy, Dr. Karen Powell, a forensic pathologist, determined that Kim had died from "shotgun wounds of the left shoulder and right back regions" that caused injuries to her lungs, heart, and liver.

{¶ 20} In response to the emergency call, police arrived and located Barton, alert and cooperative, inside the house. An EMS technician described him as suffering from a gunshot wound with non-life-threatening injuries to his chin, mouth, and...

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