State v. Garvin
| Citation | 2011 -Ohio- 6617,967 N.E.2d 1277,197 Ohio App.3d 453 |
| Decision Date | 05 December 2011 |
| Docket Number | No. 10CA3348.,10CA3348. |
| Parties | The STATE of Ohio, Appellee, v. GARVIN, Appellant. |
| Court | United States Court of Appeals (Ohio) |
OPINION TEXT STARTS HERE
Timothy Young, Ohio Public Defender, and Claire R. Cahoon and Terrence Scott, Assistant Public Defenders, for appellant.
Mark Kuhn, Scioto County Prosecuting Attorney, and Pat Apel, Assistant Prosecuting Attorney, for appellee.
[Ohio App.3d 457]{¶ 1} Appellant, Kara Garvin, appeals her conviction in the Scioto County Court of Common Pleas after a jury found her guilty of one count of aggravated burglary, two counts of aggravated robbery, six counts of aggravated murder with specifications, tampering with evidence, and a firearm specification. Although this was originally a capital case, the trial court sentenced appellant to life in prison without the possibility of parole.
{¶ 2} Appellant raises four assignments of error, arguing that (1) the trial court erred by failing to suppress eyewitness identifications of her, denying her due process, (2) the trial court erred by failing to change the venue because of pretrial [Ohio App.3d 458]publicity, denying appellant due process and a fair trial, (3) the trial court erred by failing to question a juror about her relationship with the county sheriff, denying appellant due process and a fair trial, and (4) trial counsel provided ineffective assistance when they failed to inquire further or object to the seating of the juror who was related to the county sheriff. Having reviewed the record, we find no merit to appellant's four assignments of error, and we affirm the trial court's judgment.
{¶ 3} Edward Mollett, Juanita Mollett, and Christina Mollett were shot to death on December 22, 2008. A.S., a six-year-old child, was present during the shooting. According to A.S., a woman with dark hair and a vest containing knives and guns entered the Molletts' trailer in Scioto County, Ohio, and began systematically shooting the Molletts. Christina Mollett lay on top of A.S. to shield him. Once the shooting ceased, the dark-haired woman took Edward Mollett's prescription medication and left. A.S. then ran to a neighbor's trailer.
{¶ 4} The neighbor, James Damron, called 9–1–1, and law enforcement arrived. In addition to law enforcement, family members and other neighbors gathered at Damron's trailer. Detective Paul Blaine of the Scioto County Sheriff's Department began questioning A.S. and Damron.
{¶ 5} Damron indicated that he had seen a vehicle drive up to the Molletts' trailer before the shooting and drive away immediately thereafter. Damron could not initially identify the driver of the vehicle, other than saying that it was a female with dark hair.
{¶ 6} A.S. had indicated that a woman with dark hair had shot his family. Detective Blaine asked additional questions about the shooter's appearance. To get a better understanding, Blaine had A.S. compare the physical characteristics of the shooter to those of the women present at Damron's trailer. While Blaine was talking with A.S., other law-enforcement officers began to suspect that appellant was involved in the shooting.
{¶ 7} A.S.'s mother subsequently transported him to the hospital for an evaluation, concerned that he might have been going into shock. Detective Blaine went back to his office and began compiling a photo array. Blaine began with appellant's photo, because she was the only suspect at that time. He had access to appellant's photo because she had previously been booked into the jail. Blaine then entered appellant's physical characteristics into a computer program that gave him a resulting pool of photos of women whose physical characteristics were similar. These women had also previously been booked into the jail. [Ohio App.3d 459]Blaine manuallychose five photos similar to appellant's. The final array contained color photos of six women, including appellant.
{¶ 8} Detective Blaine took the completed array to the hospital to show A.S. While A.S. was looking at the array on his mother's lap, his mother began to coax him to pay attention to the women's hair. Not wanting A.S.'s identification to be tainted, Blaine moved A.S. to a corner and continued showing him the photo array. A.S. identified appellant as the person who shot his family, and he signed his name on appellant's photo.
{¶ 9} Later that evening, appellant, with the assistance of counsel, surrendered to law enforcement. As deputies booked appellant into the Scioto County jail, they photographed her.
{¶ 10} The following day, Detective Blaine went to speak with Damron about identifying the person he had seen driving the vehicle away from the crime scene. Blaine asked Captain David Hall to prepare another photo array to show Damron. Using the same software that Blaine had employed before, Hall compiled a second photo array. This array, however, used appellant's booking photo from the previous night.
{¶ 11} Before Captain Hall gave the photo array to Detective Blaine, he asked Damron whether he had been watching the news or had read the paper. Damron responded that he had not. When Blaine presented the photo array to Damron, Damron immediately identified appellant's photo.
{¶ 12} When later questioned about how he went from being unable to identify the driver on the day of the incident to immediately identifying her the day after, Damron explained that he was familiar with appellant. His daughter had known appellant for more than 10 years, and Damron had seen appellant at social gatherings. It was not that he did not remember what the driver of the vehicle looked like, but Damron was bad with names; he initially stated that he knew the driver's face, but not her name. Presented with the photo array, Damron was easily able to identify the woman he had seen leaving the crime scene: appellant.
{¶ 13} Appellant filed a plethora of pretrial motions. Among these, appellant moved to suppress A.S.'s and Damron's identification testimony as unduly suggestive and unreliable. The trial court held a suppression hearing and ultimately overruled appellant's motion. Before the trial court issued its ruling, appellant withdrew her motion regarding A.S. She later renewed her motion as to A.S., and the trial court denied it.
{¶ 14} Beginning the day after the shooting, there were news reports concerning the incident. The shootings were a topic of discussion among county residents. The news articles relayed the names of the victims, noted that appellant was the main suspect, noted that appellant was in custody after [Ohio App.3d 460]surrendering herself, and alleged motives for the shootings. The media also covered pretrial proceedings and were present during the trial. Several stories were published immediately before trial, noting the impending jury selection and reminding readers and viewers of the case's subject matter.
{¶ 15} When the trial began, the court bifurcated the voir dire process. Initially, the court and counsel inquired of the veniremen individually. There were preliminary examinations of persons wishing to be excused for medical or educational reasons. The court then proceeded to inquire of the veniremen about their qualifications to serve as jurors in a capital trial, as well as the extent of their exposure to pretrial media and its effect upon their ability to be fair and impartial. Counsel examined the veniremen, too. Subsequently, the court conducted the general voir dire, which was performed with groups of veniremen, not individually.
{¶ 16} During the initial voir dire, the court and counsel examined approximately 106 veniremen about whether they had read, seen, or heard media reports about the case. Eighty-five of those veniremen (over 80 percent) responded that they had. Only seven persons were dismissed for cause because they evinced a preconceived opinion of appellant's guilt based upon media reports. Fifty-eight veniremen remained for the general voir dire, with 45 (over 77 percent) having been exposed to pretrial media reports concerning the case.
{¶ 17} The remaining 58 veniremen included Miriam Clausing. Clausing had disclosed on her questionnaire that she was the first cousin of the Scioto County Sheriff. It was the sheriff's department that had investigated the Molletts' deaths. The court inquired how close Clausing was to the sheriff, but did not ask whether her relationship would influence her ability to be fair and impartial. Appellant's counsel had an opportunity to question Clausing, but they too did not question her ability to be fair and impartial and raised no causal challenge. Even during the general voir dire, appellant's counsel did not question Clausing's ability to be impartial and did not raise a causal challenge. Clausing was eventually seated on the jury and served as the foreperson during deliberations.
{¶ 18} After the presentation of evidence, the jury found appellant guilty of aggravated burglary, multiple counts of aggravated robbery, multiple counts of aggravated murder, tampering with evidence, a firearm specification, and many other specifications. The jury did not sentence appellant to death, but chose instead imprisonment for life without the possibility of parole. Appellant now appeals.
I. The pretrial photographic procedure was so unnecessarily suggestive and conducive to misidentification that Ms. Garvin was denied the due process of law.
[Ohio App.3d 461]II. The trial court violated Ms. Garvin's constitutional rights to due process and a fair trial by denying Ms. Garvin a change of venue based on pretrial publicity.
III. The trial court violated Ms. Garvin's constitutional rights to due process and a fair trial by failing to question a juror about whether her relationship to the county sheriff would affect her ability to be fair and unbiased.
IV. Trial counsel provided constitutionally ineffective assistance when counsel failed to question or object to...
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