State v. Hill

Decision Date05 July 2001
Docket NumberNo. 00-591.,00-591.
PartiesTHE STATE OF OHIO, APPELLANT, v. HILL, APPELLEE.
CourtOhio Supreme Court

David L. Landefeld, Fairfield County Prosecuting Attorney, and Gregg Marx, Assistant Prosecuting Attorney, for appellant.

Carol A. Wright; Vorys, Sater, Seymour & Pease LLP, James E. Phillips and Timothy W. Hoover, for appellee.

Dan Gattermeyer, Butler County Prosecuting Attorney, and Daniel G. Eichel, Assistant Prosecuting Attorney, urging reversal for amicus curiae Ohio Prosecuting Attorneys Association.

Kohrman Jackson & Krantz P.L.L. and James B. Rosenthal; Raymond Vasvari, urging affirmance for amicus curiae American Civil Liberties Union of Ohio Foundation, Inc.

Baker & Hostetler LLP, David L. Marburger and Gina A Brickley, urging affirmance for amicus curiae Ohio Coalition for Open Government.

Lucy Dalglish, Gregg Leslie and Ashley Gauthier; Cohn & Marks, Richard Schmidt and Kevin M. Goldberg; Baker & Hostetler LLP, Bruce W. Sanford, Robert D. Lystad and Bruce D. Brown, urging affirmance for amici curiae Reporters Committee for Freedom of the Press, American Society of Newspaper Editors, and the Society of Professional Journalists.

ALICE ROBIE RESNICK, J.

I Facts and Procedural History

On September 15, 1997, Harry Sisco was shot and killed in front of his home on South Broad Street in Lancaster, Ohio. Defendant-appellee, Clifton Hill, the stepson of Harry Sisco, was indicted on September 25, 1997, on one count of aggravated murder with two firearms specifications, one count of grand theft of a motor vehicle, one count of fleeing and eluding, and one count of having weapons while under disability with a firearm specification. Appellee pled not guilty to the charges, and a lengthy jury trial, in which thirty-five witnesses testified, commenced on September 1, 1998.

Testimony at trial established that appellee and Harry Sisco had been involved in an argument at approximately 5:00 p.m. on September 15, 1997, and that appellee had made threats against Harry Sisco. Several witnesses testified that the argument had left Harry Sisco shaken and frightened.

After the argument, appellee went to a bar, where the bartender heard appellee talking to his mother on the telephone and making threats against Harry Sisco. While appellee was at the bar, he showed an acquaintance a rifle shell and asked the acquaintance if he thought it would be effective to "take him out." On cross-examination, the witness stated that he thought the "him" referred to in the question was Richard Sisco, Harry Sisco's cousin. (Richard Sisco and appellee had recently had some disagreements, and those disagreements had apparently sparked the argument between Harry Sisco and appellee earlier in the day.)

From the bar, appellee spoke to his girlfriend, B.J. Avery, on the telephone and asked her to come to the bar and to bring her car. Avery drove her black Ford Probe to the bar and gave appellee her car keys. At about 5:30 p.m., appellee drove to the home of Terry Chandler and borrowed a box of ammunition and a.243 Remington bolt-action rifle with a scope.

Shortly before the murder, several people saw a small black car (identified by at least one witness as a Ford Probe) drive by Harry Sisco's home. One of those people, Harry Sisco's next-door neighbor Betty Lehman, saw and spoke to Harry Sisco at about 6:35 or 6:40. Lehman observed that Harry Sisco was upset and looked pale. When Lehman told Harry Sisco that he didn't look good and asked him what was wrong, Harry Sisco mentioned the fight he had had with appellee that afternoon and that appellee had threatened him. Harry Sisco also told her that he was afraid of appellee. Lehman, who had known Harry Sisco for fifteen years, thought that was odd because she had found him to be a person who was not afraid of anybody.

While Lehman was speaking to Harry Sisco, he pointed out a small black car driving by on the street and told her that appellee was inside. Lehman observed that Harry Sisco was "scared to death" at this point. She told him that she didn't want to get in the middle of anything, and urged him to call 911. Lehman then returned to her own home, got in her car, and started to back out of her garage to run an errand.

After she had backed out of her garage, Lehman heard a loud blast but was not sure what it was. She continued onto the street and stopped at a red light nearby. Then she saw people, including one person who was acting "frantically," in the front yard of Harry Sisco's house. Lehman parked her car, ran across the street, and came up to the front porch. When she got there, she saw Harry Sisco lying face down in a shrub. Lehman ran to her house and called 911 at 6:47 p.m.

Two witnesses who were sitting on a nearby front porch that evening both saw a man in a dark car (identified by one as a black Ford Probe) move from the driver's side of the car to the passenger's side. Both witnesses then heard a loud bang. One of the witnesses testified that she saw the occupant of the vehicle move back to the driver's seat and drive away. She was not certain who the man in the car was, but she remarked to the other person, "Did that look like Cliff, Harry's son, to you?" The other witness testified that after the bang, a woman was running and shouting for someone to call 911 and that Harry Sisco had been shot.

Terry Chandler retrieved the rifle from appellee later that evening. As appellee handed Chandler the gun from the window of the car he was driving, Chandler saw shells scattered on the seat of appellee's car. Appellee also handed the shells to Chandler. Appellee told Chandler not to tell anyone that he had seen appellee at this time, and appellee drove away.

Chandler feared that Harry Sisco had been killed with his gun. He did not report his encounter with appellee to the police. When the police later questioned him, Chandler initially lied and told them he had thrown the gun into the Ohio River. Chandler turned the gun over to police nearly six months after the murder.

On the evening of September 15, appellee asked to borrow an acquaintance's motorcycle. When permission was refused, appellee took the motorcycle anyway and rode off. Appellee subsequently led police on a high-speed chase and was eventually apprehended.

When police searched Avery's car, they found two rounds of .243 ammunition. A firearms expert for the state testified that at one time the rounds had been chambered in Chandler's rifle.

At trial some stipulations were presented to the jury. One stipulation was that appellee's blood was drawn at 1:40 a.m. on September 16, 1997, and that this sample revealed a blood-alcohol level of "0.14 grams percent by weight." Other stipulations included the following: (1) no gunpowder particles were found on appellee's glasses, hat, watch, or clothing; (2) no fingerprints were obtained from the ammunition rounds found in Avery's car; (3) only one usable fingerprint was lifted from the car, and it was not appellee's; (4) no usable fingerprints were lifted from the rifle; (5) no usable fingerprints were lifted from the motorcycle; (6) no gunshot residue was discovered in the car; and (7) no gunshot residue was discovered on appellee, Harry Sisco, or Richard Sisco.

After the state rested, appellee did not call any witnesses, and appellee did not take the stand to testify to the jury. After deliberations, the jury found appellee guilty of aggravated murder and of both specifications accompanying that count, not guilty of grand theft of a motor vehicle, but guilty of the lesser included offense of unauthorized use of a motor vehicle, guilty of fleeing and eluding, and guilty of having weapons while under disability and the firearm specification on that count.

After appellee was sentenced, he appealed to the Court of Appeals for Fairfield County, raising six assignments of error. The court of appeals reversed the convictions, upholding two of appellee's assignments of error and finding the remaining four moot. As one ground for its decision, the court of appeals found that reversal was warranted because the trial court committed "structural error" in seating an anonymous jury for appellee's trial, even though appellee had not objected to the use of an anonymous jury.

As another basis for its decision, the court of appeals determined that appellee was penalized at trial for invoking his right to remain silent. The court of appeals found that a police detective improperly testified at trial regarding appellee's invocation of the right and that the state improperly commented on appellee's invocation of the right in closing argument. The court of appeals found that appellee did not object to the testimony, but determined that reversal was warranted because plain error occurred.

The cause is now before this court pursuant to the allowance of a discretionary appeal.

II Anonymous Jury Issue

The first issue we address is whether the utilization of an anonymous jury at appellee's trial constituted reversible error.

A

The jury trial in this case was conducted in accordance with Loc.R. 1.14 of the Court of Common Pleas of Fairfield County. That rule, effective May 2, 1996, provides:

"GRAND JURY AND PETIT JURY LISTS—The names and addresses of grand jurors and petit jurors will remain anonymous, except upon court order after a hearing and for good cause shown. The Clerk of Courts, the Jury Commission, Jury Manager, Fairfield County Sherriff sic , and the Court shall have access to the names and addresses for administrative purposes. The Prosecutor may have access to the names of the grand jurors on an as needed basis."

The introductory paragraph that accompanied the rule at the time it was promulgated provided:

"In order to maintain secrecy of the grand jury proceedings and the privacy of petit jurors, to alleviate the concern of the jurors for fear of intimidation and/or harassment, to encourage jurors'...

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