State v. Jordan, 2004 Ohio 783 (Ohio 3/10/2004), Case No. 2000-1833.

CourtUnited States State Supreme Court of Ohio
Writing for the CourtAlice Robie Resnick
Citation101 Ohio St.3d 216,2004 Ohio 783
PartiesThe State of Ohio, Appellee, v. Jordan, Appellant.
Decision Date10 March 2004
Docket NumberCase No. 2000-1833.

Page 1

2004 Ohio 783
101 Ohio St.3d 216
The State of Ohio, Appellee,
v.
Jordan, Appellant.
Case No. 2000-1833.
In the Supreme Court of Ohio.
Submitted November 18, 2003.
Decided March 10, 2004.

APPEAL from the Court of Common Pleas of Lucas County, No. CR98-2736.

Julia Bates, Lucas County Prosecuting Attorney, and Craig T. Pearson, Assistant Prosecuting Attorney, for appellee.

Jeffrey M. Gamso and Ann Baronas, for appellant.

ALICE ROBIE RESNICK, J.


{¶1} On December 7, 1996, police discovered the murdered bodies of Gertrude Thompson and her companion Edward Kowalczk in the living room of their residence on Shenandoah Road in Toledo. Approximately a year and a half later, police discovered evidence linking defendant-appellant, James Jordan, to the murders. Appellant was extradited from Texas, where he was serving a sentence for an unrelated crime. He was indicted for the murders of Thompson and Kowalczk and chose to represent himself at trial. Appellant was found guilty of aggravated murder and was sentenced to death.

I. Facts and Case History

{¶2} In early December 1996, Robert Barton, a mail carrier on the Shenandoah Road route in Toledo, noticed mail piling up in the mailbox of Gertrude Thompson and Edward Kowalczk. Barton knew both of them and was concerned because a parcel by the front door had not been taken inside. On December 7, 1996, Barton suggested to the victims' neighbor that police be called to investigate the whereabouts of the couple, who had not been seen for several days.

{¶3} Police arrived at the house but got no response after repeatedly knocking on the door. They went to the rear of the house and found the back door unlocked. Boxes blocked the back door from the inside, but police pushed them away to enter the premises. Police then discovered the bodies of Thompson and Kowalczk in the living room.

{¶4} Detective David Mullin, the primary investigator, described the crime scene as "[e]xtremely violent * * *. Probably one of the most violent I've ever seen." Thompson and Kowalczk maintained a "cluttered" house, according to their children, but the crime scene showed signs of a major struggle. The victims sustained numerous physical injuries, and the living room walls and furniture were spattered with blood.

{¶5} At the crime scene, police collected DNA evidence, including a blood droplet on a piece of paper ten feet away from the bodies, that raised "a red flag" to investigators. Police also discovered drops of blood on a purple box and ceramic pot that, due to the placement of the droplets, appeared to be from someone other than the victims.

{¶6} A double-elephant pendant was missing from Thompson when her body was discovered. Thompson's father had given it to her when she was a little girl, and she was known to have worn it all the time.

{¶7} The deputy coroner testified that Thompson and Kowalczk suffered numerous injuries, including bruises, abrasions, lacerations, stab wounds, and depressed skull fractures. The coroner concluded that both victims had died as the result of blunt force injuries to the head and had been dead at least three days before their bodies were discovered.

{¶8} Following the murders, the investigation focused on Ethan Walls, who had rented property from Gertrude Thompson. JoAnn Person Harvey had told Detective Mullin she had seen Walls three days after the murders. Harvey made statements to police tending to implicate Walls in the murders of Thompson and Kowalczk, which she later recanted.

{¶9} The murder investigation made little progress until July 1998. At that time, Annette Chiaverina, who owned a Toledo pawnshop with her husband, was reading through old newspapers and saw an article with a photo of a double-elephant pendant. Chiaverina recalled that two black males had sold the double-elephant pendant to her. The pawn shop records indicate that on December 3, 1996, Gordy Candie pawned the pendant for $20. Chiaverina found the pendant in her safe and called Toledo Police Detective Reasti, who confirmed that it was the pendant that they had been looking for.

{¶10} Detective Scott and another detective took the double-elephant pendant with them and contacted Candie at his residence. Candie told police that he had known appellant since the 1970s and had seen him at the St. Paul's Community Center on December 3, 1996. According to Candie, appellant asked him whether he had any ID because appellant did not, and appellant wanted to pawn a "broach" [sic] with two elephants on it. Appellant told Candie he would split the proceeds if Candie would pawn the pendant for him. Upon pawning the double-elephant pendant for $20, Candie signed a paper and showed his ID, which was copied and made part of the pawnshop records. Candie stated that after he left the pawnshop, he and appellant went to Candie's home and got high on crack cocaine. Candie saw appellant the following day at St. Paul's but did not see him after that.

{¶11} Candie voluntarily accompanied Mullin to the health department, where Candie submitted two blood samples, which were sent to the DNA laboratory at the Medical College of Ohio. Police thereafter discovered that appellant was in prison in Texas and obtained blood samples from him pursuant to a warrant. After DNA testing of 15 suspects' blood over the years, including appellant's, the supervisor of the DNA laboratory concluded, to a reasonable degree of scientific certainty, that the unknown blood found in several places at the crime scene was appellant's blood.

{¶12} On October 2, 1998, the grand jury indicted appellant on four counts of aggravated murder, each carrying three death penalty specifications: (1) murder in connection with an aggravated robbery pursuant to R.C. 2929.04(A)(7); (2) murder in connection with an aggravated burglary pursuant to R.C. 2929.04(A)(7); and (3) murder as a course of conduct involving the killing or attempt to kill two or more persons pursuant to R.C. 2929.04(A)(5). Appellant was also indicted on two counts of aggravated robbery and one count of aggravated burglary. Appellant was subsequently brought to Lucas County from Texas to stand trial.

{¶13} In the months leading up to trial, appellant obtained new counsel but wanted to represent himself. Appellant executed a waiver in court, and his attorneys were appointed as advisory counsel. The prosecutor raised the issue of whether appellant was competent to waive counsel, but advisory counsel discounted any notion that competency was an issue with appellant's decision. The trial court agreed and confirmed appellant's competency to represent himself.

{¶14} At trial, appellant testified under oath on his own behalf. Appellant claimed that he had worked for Thompson for four years and that his DNA is "probably in all of Gertrude Thompson's property because [he had] been there" moving items, installing pipes, and painting. Appellant asserted that he never "did anything" to the victims, and claimed he was "the perfect scapegoat" because he was already in prison. He further claimed that Thompson was a friend, and on cross-examination asserted that Candie had lied about the specifics of pawning the elephant pendant.

{¶15} The jury found appellant guilty on all counts and specifications except Count six—the aggravated robbery of Kowalczk.

{¶16} Appellant executed a waiver of rights to present mitigating evidence. The prosecuting attorneys then raised the issue of appellant's competency but stated that they saw nothing to indicate that appellant was not competent to waive the presentation of mitigating evidence. The court agreed, stating: "The Court has observed Mr. Jordan through the last two weeks of this trial, has found Mr. Jordan to be not only not incompetent, but a very competent, very intelligent person."

{¶17} The trial court merged the four aggravated murder counts into two counts (one for each victim). After deliberation, the jury found that the aggravating circumstances outweighed the mitigating factors beyond a reasonable doubt and recommended the death penalty on both counts. The trial court sentenced appellant to death for the murders and to prison terms on the remaining counts. The cause is now before this court upon an appeal as of right.

{¶18} Appellant has raised nine propositions of law. We have reviewed each and have determined that none justifies reversal of appellant's convictions for aggravated murder. Pursuant to R.C. 2929.05(A), we have also independently weighed the aggravating circumstances against the mitigating factors and have reviewed the death penalty for appropriateness and proportionality. We find that the aggravating circumstances in each count outweigh the factors in mitigation beyond a reasonable doubt. Therefore, we affirm appellant's convictions and sentence of death.

II. Pretrial Issues
A. Competency to Waive Counsel

{¶19} In his first proposition of law, appellant argues that the trial court erred in failing to make a proper determination of competency or to order a competency evaluation when appellant declared his desire to waive representation by counsel. Appellant also contends that defense counsel rendered ineffective assistance by not urging the trial court to order a competency evaluation prior to the time they were removed as counsel and appointed as advisory counsel for appellant.

{¶20} The facts underlying appellant's waiver of his right to counsel were as follows: On February 16, 2000, appellant told the trial court that he did not want his court-appointed attorneys: "I won't have anything to do with them." Two days later, appellant filed a motion to waive counsel and to proceed pro se. Then, at a February 28 hearing, appellant reiterated that he was not satisfied with his counsel and wished to represent himself. Appellant claimed that counsel had met with him only three times. On March 9, the trial court denied appellant's motion to waive counsel and the next day appointed new counsel to...

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