State v. Kinney

Decision Date28 June 2019
Docket NumberCase No. 18 BE 0011
PartiesSTATE OF OHIO, Plaintiff-Appellee, v. DAVID CARL KINNEY, Defendant-Appellant.
CourtOhio Court of Appeals


Criminal Appeal from the Court of Common Pleas of Belmont County, Ohio

Case No. 17 CR 154

BEFORE: Carol Ann Robb, Gene Donofrio, David A. D'Apolito, Judges.

JUDGMENT: Affirmed.

Atty. Daniel P. Fry, Belmont County Prosecutor, Atty. Kevin Flanagan, Chief Asst. Prosecuting Attorney, 147-A W. Main Street, St. Clairsville, Ohio 43950 for Plaintiff-Appellee and

Atty. Christopher J. Gagin, McCamic, Sacco & McCoid, PLLC, 56 14th Street, Wheeling, West Virginia 26003 for Defendant-Appellant.

Robb, J.

{¶1} Defendant-Appellant David Kinney appeals his aggravated murder conviction entered after a jury trial in the Belmont County Common Pleas Court. He raises issues with: the sufficiency and the weight of the evidence on the element of prior calculation and design; the lack of Miranda warnings during the police interview until after he admitted and demonstrated the shooting; the voluntariness of his statement to police; the admissibility of a recorded spousal conversation; the denial of access to the grand jury transcript; the failure to excuse two venire members for cause; whether a jury instruction suggested the jury had to unanimously acquit him of aggravated murder before considering the lesser charge of murder; the refusal to instruct on voluntary manslaughter; and the reviewability of the sentence of life without parole. For the following reasons, the trial court's judgment is affirmed.


{¶2} Appellant became friends with Brad McGarry (the victim) after they met at a coal mining class in 2011. Appellant was married, and his wife had three children he considered his own. They spent holidays with the victim, and the children called him "uncle." At some point, Appellant and the victim began having an affair. Starting at the end of 2016, Appellant's wife voiced suspicions about the affair to Appellant. (Tr. 569-573). Around this time, the victim was upset Appellant would not leave his wife for the victim. (Tr. 889, 892).

{¶3} On May 6, 2017, the victim went to a wedding in Monroe County and stayed at his mother's house. During a family meal on May 7, the victim received a message on his phone and rushed to leave in a mood that was described as happy, giddy, and excited. (Tr. 298). Before leaving, he indicated to his cousin that he would return a tuxedo to the mall and then go home to meet Appellant where he expected they would take "a nap." The victim said this with a wink, suggesting to the cousin the victim was meeting Appellant for a sexual encounter. (Tr. 315-318). The victim returned the tuxedo and arrived at his home in Bellaire, Ohio around 2:55 p.m. The police chief lived on the same street as the victim, and his surveillance system captured footage of vehicles traversing the street. A car driven by Appellant traveled toward the victim's house at 1:59 p.m. and traveled away from the victim's house at 3:11 p.m. (sixteen minutes after the victim arrived home). (Tr. 476).

{¶4} Later that day, Appellant drove his wife and her thirteen-year-old daughter from their home in Brilliant, Ohio to the victim's house (over 30 minutes away) where they were to visit and to deliver a weed trimmer. The child went to the door first and noticed it was open. When they looked in the kitchen, they noticed drawers and cupboards open and items strewn about. After unsuccessfully calling the victim vocally and over the phone, Appellant's wife told him to retrieve his firearm. It was in his car, and he had a concealed carry permit. Upon retrieving his .40 caliber handgun, Appellant explored the main floor of the house. Upon descending to the basement, which was also a garage, he yelled for his wife to call 911. She went downstairs followed by her daughter. At 6:15 p.m., Appellant's wife called 911 to report the discovery of the victim's body surrounded by a pool of blood.

{¶5} The victim was lying face down on the floor near a covered hot tub in a cluttered area of the basement. The victim had been shot twice in the back of the head. Gunshot residue was observed around both entrance wounds. (Tr. 604). One shot entered the top-back portion of the victim's scalp and exited the top-front of the scalp without entering the skull or brain. (Tr. 599). Although the bullet caused a skull fracture and blood loss, this wound likely would not have been fatal with medical care. (Tr. 602). A deformed bullet fragment was found on the basement floor; brushed copper was still visible on the small caliber bullet, which appeared consistent with a .22 caliber bullet. (Tr. 721).

{¶6} After learning about a hat at the scene, the forensic pathologist opined the gun would have been fired from a few to several inches away to cause this perforating scalp wound; he originally believed it was a contact wound due to the amount of gunshot residue. (Tr. 638, 658, 678). The hat was found on the hot tub. Indications that it was on the victim's head during the shot through the scalp included a dense pattern of gunshot residue around a hole in the top of the hat and a piece of skin tissue with hair stuck to the outside front of the hat under another hole. (Tr. 719, 724, 808). During a later search, police recovered an additional piece of the victim's skin tissue with hair from the side of the washing machine located 10-15 feet from the body. (Tr. 518, 764, 785).

{¶7} As for the fatal shot, the bullet entered the back of the victim's head in the left occipital area and was recovered from the right, front portion of the brain. (Tr. 608-609). This bullet was specifically identified as a .22 caliber long rifle copper-washed lead bullet; in this context, "long rifle" refers to the caliber, not the type of gun used to fire it. (Tr. 762, 811). The forensic pathologist opined the fatal wound was a partial contact shot inflicted at an angle, noting the abundance of soot on the right side of the entry wound. (Tr. 633-635).

{¶8} The police believed the scene appeared staged to look like a robbery because it seemed "neatly ransacked" and valuable items were visible, including a gun in an open nightstand drawer and money. Various drawer handles were swabbed and tested for touch DNA. Most swabs did not contain enough material for analysis, but the victim's DNA was predictably found on a kitchen drawer. (Tr. 521-526, 554).

{¶9} Upon speaking to the responding officers at the scene, Appellant reported the victim was his best friend who was like a brother to him. It was said the victim planned to go on vacation with Appellant's family that summer. When asked if anyone may have reason to commit the offense, Appellant named a man the victim dated (who was cleared due to his incarceration at the time). He also mentioned two men who recently installed a fence at the house. (Tr. 351, 905). Appellant provided a written statement at the scene. A detective explained they would conduct a detailed follow-up interview of him and his wife in the next few days. During interviews with others, it was reported the victim was having an affair with Appellant and threatened to tell Appellant's wife about the relationship. (Tr. 975-976).

{¶10} Appellant arrived at the police station for his interview two days after the shooting. He provided DNA for purposes of elimination. He also provided consent to search his phone and the passcode. He said he and his step-son went to visit the victim the day before the shooting. The victim called him that night during and after the wedding, and they spoke both times. Appellant discussed his activities on the day of the shooting, omitting any mention of being at the victim's house earlier that day. He told a similar story of finding the body that he told at the scene.

{¶11} When the detective asked about certain items discovered on Appellant's phone, Appellant admitted he had recurrent sexual encounters with the victim for years. He said his wife did not know about the sexual relationship. Appellant thereafter disclosed that he was in Bellaire earlier on the day of the shooting and drove by the victim's house. He then said he waited in front of the victim's residence rather than merely driving by.

{¶12} Eventually, Appellant claimed he waited until the victim drove up with another man; although, the detective remembered the front passenger seat of the victim's vehicle was filled with items. Appellant said he heard a gunshot from the basement, he did not see the shooting, and he fled the scene because he was scared. He apologized for not calling the police. Thereafter, he said he witnessed the shooting, which prompted the shooter to threaten Appellant's life and say his wife would learn of the affair if Appellant implicated him in the shooting.

{¶13} Finally, Appellant admitted he was the person who shot the victim. The detective asked if Appellant staged the scene to look like a robbery. In response, Appellant said the victim was upset about missing money and was opening drawers while Appellant was insisting he did not take it. Regarding another topic of argument, Appellant recited: the victim had been asking him to leave his wife for some time; he loved the victim but also loved his wife and kids; he told the victim he had no thoughts of leaving his family for the victim; and he informed the victim they had to discontinue the affair. According to Appellant, the victim flipped out, smacked him with both hands, told him to leave his wife, yelled about how Appellant "fucked with" his emotions for so long, and then started waving and pointing a Derringer at him.

{¶14} Appellant said he grabbed the gun and pushed the victim back. He said the victim then rushed at him. He said he felt threatened and shot the victim, first in the top of the head and then in the back of the head after the victim was down. The detective observed how Appellant...

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