State v. Diar

• Decision Date: 10 December 2008
• Docket Number: No. 2005-2264.,2005-2264.
• Citation: 120 Ohio St.3d 460,2008 Ohio 6266,900 N.E.2d 565
• Parties: The STATE of Ohio, Appellee, v. DIAR, Appellant.
• Court: Ohio Supreme Court

900 N.E.2d 565

120 Ohio St.3d 460

2008-Ohio-6266

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

No. 2005-2264.

Supreme Court of Ohio.

Submitted August 26, 2008.

Decided December 10, 2008.

Dennis P. Will, Lorain County Prosecuting Attorney, and Anthony Cillo and Billie Jo Belcher, Assistant Prosecuting Attorneys, for appellee.

Timothy Young, Ohio Public Defender, and Linda E. Prucha, T. Kenneth Lee, and Justin C. Thompson, Assistant Public Defenders, for appellant.

O'CONNOR, J.

{¶ 1} On the morning of August 27, 2003, a fire seriously damaged the Lorain, Ohio home of defendant-appellant, Nicole Diar. The body of her four-year-old son, Jacob Diar, was found in the bedroom. Subsequent investigation determined that gasoline was used to start the fire and that Jacob had been killed before the fire began.

{¶ 2} Diar was convicted of the aggravated murder of Jacob and was sentenced to death. For the following reasons, we affirm Diar's convictions but reverse the death sentence and remand the cause for a new mitigation hearing.

State's case

{¶ 3} Nicole Diar is a burn victim. At age four, Diar's pajamas caught fire, and she suffered horrific burns that left permanent scarring over much of her body. She underwent 61 operations over the next 14 years. As a result of the accident, Diar received a structured settlement that provided her approximately $3,000 per month and other periodic lump-sum payments.

{¶ 4} During the first few months of 2003, Diar and Jacob lived in an apartment on Beavercrest Street in Lorain. Rebecca Diar, the defendant's sister, and Taylor Diar, Rebecca's daughter, lived in the same building.

{¶ 5} On one occasion during 2003, 14-year-old Luis Agosto babysat for Jacob and Taylor. Diar and Rebecca asked Agosto to give Jacob some medicine because of his hyperactivity. The medicine was in a bottle that looked like it contained cough syrup, but Agosto did not read the label. After Diar and Rebecca left for the evening, two other teenagers, Christopher Shreves and Rachel Wise, came to the apartment. Agosto then gave Jacob a teaspoon of the medicine, and Jacob became sick and vomited. Shreves read the label and learned that the bottle contained Tylenol 3 with codeine that had been prescribed for Taylor. Shreves told Diar about the incident when she arrived home later that night. Diar said it was "no big deal" and that Jacob would be fine.

{¶ 6} During the summer of 2003, 15-year-old Destiny Faulkner babysat for Jacob. On three occasions, Diar asked Faulkner to give Taylor's codeine to Jacob because it made him sleepy. Faulkner gave Jacob this medicine on two occasions. She did not give Jacob medicine on the third occasion because he was not sick.

{¶ 7} At trial, Sahar Sarkis, a pharmacist, testified that on May 20, 2003, he filled a prescription for acetaminophen with codeine, a schedule V drug, for Taylor Diar. Possible side effects in taking this drug include upset stomach, vomiting, nausea, and drowsiness.

{¶ 8} On July 1, 2003, Diar and Jacob moved into a rental home at 910 W. 10th Street in Lorain. Charles Hassler, the landlord, renovated the house before Diar moved in. He installed a new smoke detector near the dining room and made sure that all the smoke detectors in the house worked and had batteries.

{¶ 9} On the morning of August 26, 2003, Diar spoke to Michelle Gregory, Hassler's girlfriend. Diar said that she had lost her house keys and needed replacements. At 2:00 p.m. on August 26, Hassler went to Diar's house and gave her a replacement key. Diar told Hassler that someone had broken into her house the previous evening and had taken her keys and money orders that she had purchased to pay the rent. Diar said that she was going to change the locks to make sure that the house was safe.

{¶ 10} On August 26, Leroma Penn, Diar's next-door neighbor, saw Diar "off and on" for much of the day. Diar mentioned that she wanted to change the door locks because she suspected that John Walker, an acquaintance, had stolen her keys. Leroma volunteered to change the locks.

{¶ 11} Around 9:00 p.m. on August 26, Leroma installed a doorknob lock on the front door and a deadbolt lock on the back door. However, Leroma did not change the strike plate on the front door, which was sticking and making the door hard to open, because Diar said that she wanted to hear if anyone tried to enter the house. Leroma remembered handing the keys to Diar or putting them on the table after she installed the locks. Sometime that evening, Diar parked her car in an alley across the street from her house.

{¶ 12} Before Leroma left the house, Diar said that she was going to settle Jacob down for the night. Diar said that she would call Leroma later so they could get back together.

{¶ 13} Sometime later that evening, Leroma returned to Diar's home. Jacob was asleep on the living room couch. According to Leroma, Jacob slept mostly on the couch or chaise lounge in the living room. Leroma stated that Jacob did not spend much time in the first-floor bedroom, and she had never seen Jacob go into that bedroom by himself.

{¶ 14} Diar and Leroma spent the remainder of the evening sitting on the porch and drinking banana rum and Kahlua. At 1:00 a.m. on August 27, Leroma went home. Before departing, Leroma saw Diar lie down on the couch with Jacob. He was wearing one of Diar's T-shirts. Leroma made sure the front door was locked when she left.

{¶ 15} At around 8:00 a.m. on August 27, Leroma called Diar because they had made plans to run some errands together that morning. However, Diar did not answer the phone. About an hour later, Leroma was in her basement when she heard Diar shrieking. Leroma went outside and saw Diar standing on her front porch while smoke was coming out the front door. Diar was screaming that her house was on fire, and she could not find Jacob. Leroma called 911.

{¶ 16} Edgar Penn, Leroma's husband, was awakened by Diar's screams. Edgar put on some clothes, went outside, and saw that Diar's house was on fire. Edgar asked Diar where Jacob was, and she said, "[H]e was in the front chair of the living room." She also said that Jacob could be upstairs or in the kitchen. Edgar could not enter the front door because of the smoke. Edgar then ran to the back of the house. However, he could not enter the house because the smoke was too intense.

{¶ 17} At 9:06 a.m., Lorain firemen were dispatched to Diar's house. Lieutenant Mark Nunez, one of the first firemen at the scene, observed heavy smoke and fire around the entire house. Nunez met Diar in the front of her house. Diar said, "[M]y baby's inside." Nunez and two firemen then entered the front door and saw that the fire was concentrated on the west side of the house where the first-floor bedroom was located.

{¶ 18} Fireman Steve Griffith arrived shortly after Nunez. Griffith talked to Diar in front of the house and asked where she had last seen her child. Diar said, "Downstairs in the back." As Griffith was about to enter the house, Diar pulled on Griffith's arm and told him, "[N]o, no, I mean he's upstairs. He's upstairs." Griffith then entered the house, walked through the heavy fire and smoke in the dining room area, and went upstairs looking for Jacob.

{¶ 19} Griffith thoroughly searched the second floor for Jacob. Griffith was trapped in the upstairs hallway and unable to return downstairs because the fire was coming up the stairwell. Despite the smoke, Griffith eventually found a window and jumped to the ground, injuring himself.

{¶ 20} Fireman John May talked to Diar outside her house during the fire. May noticed that Diar's skin and clothing were not covered in soot, and he did not smell any gasoline on her person. May testified that he would have expected Diar to have been covered in soot if she had spent any amount of time in her smoke-filled house.

{¶ 21} Around 10:00 a.m., the fire was extinguished. Lieutenant James Davis, a Lorain fireman, entered the house to look for hot spots and burning embers. He smelled gasoline at the front door. Davis proceeded through the house and noticed an obvious burn pattern on the floor that went into the bedroom. Davis then entered the first-floor bedroom and found Jacob's severely burned body on the bed.

{¶ 22} Shortly after Jacob's body was found, Diar and her mother, Marilyn Diar, were escorted to a nearby ambulance. A paramedic examined Diar and determined that her lungs were clear, she had no problems breathing, and everything appeared normal. Diar was then informed that her son had been killed in the fire.

{¶ 23} Lorain Detective David Garcia, who was present in the ambulance, asked Diar what happened. Diar said she woke up to black smoke everywhere and tried to find her son, but was overcome by smoke and left the house. Diar provided no further information. However, she asked Garcia whether her son had been burned beyond recognition. Garcia replied that he did not know. Diar and her mother then left the area.

{¶ 24} Around 8:00 p.m. on August 27, Garcia spoke to Diar at her parents' home. In a taped interview, Diar stated that she was home on the night before the fire. Diar said that she had spent some time with Leroma, but she had had no other visitors that evening. Diar said that she had changed her door locks earlier in the day because she had lost her keys. Diar suspected that John Walker, who had been at her house on August 25, may have taken them.

{¶ 25} Diar told Garcia that Jacob had gone to sleep on the chaise lounge in the living room at about 11:00 p.m., and she went to sleep on the living room couch at about 1:30 a.m. Diar said the house was locked. At 4:30 a.m., Jacob woke up, and Diar gave him some juice. Diar said that she woke up between 8:50 and 9:00 a.m. and saw black smoke everywhere. Diar saw that Jacob was not on the chaise lounge, and she called out for him but received no answer. Diar said she went into the dining room looking for Jacob but left the house because she...