State v. Beverly Seymour

• Decision Date: 09 November 1993
• Docket Number: 93-LW-4531,90 CA 38
• Citation: State v. Beverly Seymour, 90 CA 38, 93-LW-4531 (Ohio App. Nov 09, 1993)
• Parties: STATE OF OHIO, Plaintiff-Appellee v. BEVERLY SEYMOUR, Defendant-Appellant. CASE
• Court: Ohio Court of Appeals

STATE OF OHIO, Plaintiff-Appellee v. BEVERLY SEYMOUR, Defendant-Appellant.

No. 90 CA 38

93-LW-4531 (4th)

Court of Appeals of Ohio, Fourth District Pickaway

November 9, 1993

COUNSEL FOR APPELLANT:^[1] Ken Murray, 336 South High Street Columbus, OH 43215.

COUNSEL FOR APPELLEE: P. Randall Knece, Pickaway County Prosecutor 124 W. Franklin Street, P.O. Box 631, Circleville, OH 43113.

DECISION

ABELE J.

This is an appeal from a Pickaway County Common Pleas Court judgment of conviction and sentence finding Beverly Seymour defendant below and appellant herein, guilty of voluntary manslaughter in violation of R.C. 2903.03 with a firearm specification.

Appellant, through counsel, assigns the following errors:

FIRST ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT WHEN IT DENIED HER MOTION FOR AN IN CAMERA INSPECTION OF RELEVANT GRAND JURY TESTIMONY."

SECOND ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT WHEN IT FAILED TO GRANT HER REQUEST FOR THE VOIR DIRE OF A JUROR AFTER THE COURT HAD BEEN ADVISED THAT THE JUROR HAD SPOKEN TO AN OUTSIDE PARTY DURING THE COURSE OF THE TRIAL."

THIRD ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT WHEN IT FAILED TO SUPPRESS STATEMENTS AND EVIDENCE OBTAINED AS THE RESULT OF AN ILLEGAL ARREST AND INTERROGATION."

FOURTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED BY FAILING TO SUPPRESS APPELLANT'S INVOLUNTARY STATEMENTS, WHICH WERE OBTAINED IN VIOLATION OF APPELLANT'S CONSTITUTIONAL RIGHTS TO COUNSEL AND TO REMAIN SILENT."

FIFTH ASSIGNMENT OF ERROR:

"THE MISCONDUCT OF THE PROSECUTOR DURING TRIAL AND CLOSING ARGUMENTS WAS SUCH THAT APPELLANT WAS DENIED A FAIR TRIAL."

SIXTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY GIVING IMPROPER, INCOMPLETE, AND INACCURATE INSTRUCTIONS TO THE JURY."

SEVENTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT WHEN IT ALLOWED APPELLANT TO BE CONVICTED USING EVIDENCE NOT PROPERLY ADMITTED AT TRIAL."

EIGHTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED TO THE PREJUDICE THE [sic] APPELLANT WHEN IT ALLOWED THE PROSECUTION TO INTRODUCE IMPROPER REBUTTAL TESTIMONY NOT PROVIDED THROUGH DISCOVERY."

NINTH ASSIGNMENT OF ERROR:

"OHIO'S REQUIREMENT THAT THE ACCUSED HAS THE BURDEN OF PROOF REGARDING SELF-DEFENSE (R.C. 2901.05) IS UNCONSTITUTIONAL IN THIS CASE BECAUSE APPELLANT ALSO HAD THE BURDEN, UNDER THE JURY INSTRUCTIONS GIVEN, TO PROVE THAT SHE WAS UNDER THE INFLUENCE OF A SUDDEN PASSION OR IN A SUDDEN FIT OF RAGE, AS RELATED TO THE LESSER OFFENSE OF VOLUNTARY MANSLAUGHTER, DESPITE THE FACT THAT SUCH CIRCUMSTANCES DO NOT CONSTITUTE UNLAWFUL CONDUCT, ALL IN VIOLATION OF ThE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION."

TENTH ASSIGNMENT OF ERROR:

"TRIAL COUNSEL'S CONDUCT WAS SUCH THAT APPELLANT, TO HER PREJUDICE, WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION OF SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 TO THE OHIO CONSTITUTION."

ELEVENTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED BY FAILING TO COMPLY WITH APP.R. 9, THEREBY DENYING APPELLANT HER CONSTITUTIONAL RIGHTS TO A FULL, FAIR, AND MEANINGFUL APPELLATE REVIEW BASED ON A COMPLETE RECORD AND EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL."

TWELFTH ASSIGNMENT OF ERROR:

"THE COURT OF APPEALS HAS PREVENTED APPELLANT FROM OBTAINING A FULL, FAIR AND MEANINGFUL REVIEW OF HER CONVICTION AND SENTENCE ON APPEAL AND FROM OBTAINING EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL BY ARBITRARILY DENYING HER REQUEST TO FILE A BRIEF IN EXCESS OF THIRTY-FIVE PAGES."

Appellant raises the following fifteen assignments of errors pro se:

FIRST PRO SE ASSIGNMENT OF ERROR:

"THE ELEMENTS OF VOLUNTARY MANSLAUGHTER WERE NOT ESTABLISHED OR PROVED AND THE VERDICT SHOULD BE SET ASIDE, AS IT VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS."

SECOND PRO SE ASSIGNMENT OF ERROR:

"THE COURT COMMITTED PLAIN ERROR WHEN IT INSTRUCTED THAT DEFENDANT HAD TO BE `IN FEAR OF DEATH' IN ORDER TO USE SELF-DEFENSE IN HER OWN HOME (OBJECTED TO BY DEFENSE COUNSEL). THIS VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS TO DUE PROCESS, AND TO SELF-DEFENSE."

THIRD PRO SE ASSIGNMENT OF ERROR:

"THE COURT COMMITTED PLAIN ERROR WHEN IT FAILED TO FULLY INSTRUCT THE JURY ON THE OHIO LAW OF `NO DUTY TO RETREAT FROM ONE'S HOME,' VIOLATING HER CONSTITUTIONAL RIGHTS."

FOURTH PRO SE ASSIGNMENT OF ERROR:

"THE COURT COMMITTED PLAIN ERROR IN ITS JURY INSTRUCTIONS ON THE MEANING OF `REASONABLE DOUBT.'"

FIFTH PRO SE ASSIGNMENT OF ERROR:

"DEFENSE COUNSEL DISPLAYED INCOMPETENCY WHEN THEY DID NOT OBJECT TO THE COURT'S DEFINITION OF `REASONABLE DOUBT.'"

SIXTH PRO SE ASSIGNMENT OF ERROR:

"THE COURT ERRED IN ADMITTING THE TESTIMONY OF SHERIFF DWIGHT RADCLIFF BECAUSE THE TAKING INTO CUSTODY OF DEFENDANT OUTSIDE HIS JURISDICTION VIOLATED DUE PROCESS OF LAW."

SEVENTH PRO SE ASSIGNMENT OF ERROR:

"THE COURT ERRED IN ADMITTING THE TESTIMONY OF SHERIFF RADCLIFF BECAUSE DEFENDANT DID NOT KNOWINGLY, WILLFULLY WAIVE HER MIRANDA RIGHTS NOR `MAKE A STATEMENT'; HER CONSTITUTIONAL RIGHTS WERE NOT PRESERVED."

EIGHTH PRO SE ASSIGNMENT OF ERROR:

"BEVERLY SEYMOUR WAS ILLEGALLY ARRESTED AND HELD, IN VIOLATION OF HER CONSTITUTIONAL RIGHTS."

NINTH PRO SE ASSIGNMENT OF ERROR:

"THE ADMISSION OF THE GUN AND SEARCH OF SEYMOUR'S CAR, AND THE MOTEL ROOM, WERE IMPROPER AND VIOLATED DUE PROCESS OF LAW; AND TESTIMONY PERTAINING TO THE CAR AND ROOM SEARCH, ROOM SEARCH, [sic] AND EVIDENCE GATHERED, SHOULD HAVE BEEN EXCLUDED."

TENTH PRO SE ASSIGNMENT OF ERROR:

"DEFENSE COUNSEL WERE INCOMPETENT IN REPRESENTING A `SELF-DEFENSE' ARGUMENT FOR DEFENDANT WITHOUT ASKING FOR PSYCHOLOGICAL TESTING TO DETERMINE IF SHE SUFFERED FROM BATTERED WOMAN'S SYNDROME. IF SO, BATTERED WOMAN'S SYNDROME EXPERT TESTIMONY SHOULD HAVE BEEN PRESENTED TO HELP THE JURY UNDERSTAND HER `STATE OF MIND' AT THE TIME OF THE INCIDENT. THEY ALSO REFUSED, UNDER OBJECTION FROM DEFENDANT, TO CALL HER SISTER, JULIE BUSKIRK, WHO WAS WITH HER, AND SAW HER `STATE OF MIND' THAT NIGHT."

ELEVENTH PRO SE ASSIGNMENT OF ERROR:

"DEFENDANT WAS NOT AFFORDED ANY OPPORTUNITY TO HAVE SEPARATE ARGUMENT AND DELIBERATION ON THE APPLICATION OF A GUN SPECIFICATION TO HER CASE. THE APPLICATION OF THE GUN SPEC TO A HOMEOWNER IN HER OWN HOME IS UNCONSTITUTIONAL."

TWELFTH PRO SE ASSIGNMENT OF ERROR:

"THE VERDICT IN THIS CASE VIOLATES THE AMERICAN CONSTITUTIONAL RIGHTS OF EVERY CITIZEN TO `KEEP AND BEAR ARMS.' DEFENDANT WAS LITERALLY PUNISHED AN EXTRA THREE YEARS FOR USING THE ONLY SELF-DEFENSE WEAPON PROTECTED BY THE CONSTITUTION. SHE WAS NOT PROWLING THE STREETS OR A DANGER TO HER SOCIETY. SHE WAS A HOMEOWNER, IN HER HOME, AND THE GUN WAS IN HER HOME."

THIRTEENTH PRO SE ASSIGNMENT OF ERROR:

"DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN AFTER HER REQUEST, SHE WAS DENIED APPOINTMENT OF AN ATTORNEY AT HER ARRAIGNMENT; SHE DID NOT KNOWINGLY WAIVE HER RIGHTS TO AN ATTORNEY, OR TO A PRELIMINARY HEARING."

FOURTEENTH PRO SE ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN ADMITTING THE TESTIMONY OF DEPUTIES AT THE SCENE AND EVIDENCE GATHERED AT DEFENDANT'S HOME AS THE SEARCH WAS DONE WITH NO SEARCH WARRANT, NOT IN CONJUNCTION WITH AN ARREST, AND WERE NOT GIVEN PERMISSION TO ENTER THE PREMISES."

FIFTEENTH PRO SE ASSIGNMENT OF ERROR:

"DEFENDANT'S ATTORNEYS WERE INCOMPETENT FOR NOT OBJECTING TO THE ILLEGAL SEARCH OF DEFENDANT'S HOME AND IMPROPERLY GATHERED EVIDENCE."

Appellant married Richard Reams on December 29, 1979. After finding themselves unable to bear children, appellant and Reams entered into a contract with Lee Stotski whereby Stotski would attempt to become impregnated by Reams and bear a child for appellant and Reams to raise as their own. Although Stotski's attempts to become pregnant by Reams failed, she did become pregnant by another man, bore a child on January 13, 1985, and gave the child to appellant and Reams. Appellant and Reams named the child Tessa Reams.

On May 19, 1987, appellant filed for divorce from Reams. The divorce became final in February 1988, but did not resolve the issue of Tessa's custody. On August 20, 1990, after protracted litigation on the custody issue, Judge Ronald Solove of the Franklin County Common Pleas Court, Juvenile Division, announced his decision to award custody of Tessa to Richard Reams. Appellant left the courtroom before Judge Solove finished announcing his decision. The decision became journalized at approximately 2:00 p.m. on August 27, 1990.

Richard Reams, traveling with two certified copies of the judgment entry, arrived at appellant's residence in Pickaway County sometime between 4:00 p.m. and 4:30 p.m. that same afternoon to obtain custody of Tessa. Neither appellant nor Tessa were home. Appellant's uncle William Seymour, who shared the kitchen portion of appellant's apartment, let Reams inside the apartment, made him a cup of coffee, and gave him permission to use the telephone. William Seymour then left appellant's apartment and went into his adjoining apartment to wash a shirt and read his mail.

Reams used appellant's telephone to make approximately six calls. He billed four long distance calls to his mother's Delaware County residence where he was living at the time. At 4:39 p.m., Reams called his attorney at her home for advice. She advised Reams to call the sheriff's department to notify them that appellant had absconded with Tessa. Reams called the sheriff's department at 4:45 p.m. and notified them about the situation.

At 4:51 p.m. Reams called his attorney for more advice. She informed Reams that she would attempt to reach Judge Solove at home and ask him to call the sheriff's department. At 4:56 p.m. and again at 4:59 p.m., Reams called his mother's...