State v. Myers

• Decision Date: 17 May 2018
• Docket Number: No. 2014–1862,2014–1862
• Citation: 154 Ohio St.3d 405,2018 Ohio 1903,114 N.E.3d 1138
• Parties: The STATE of Ohio, Appellee, v. MYERS, Appellant.
• Court: Ohio Supreme Court

154 Ohio St.3d 405

114 N.E.3d 1138

2018 Ohio 1903

The STATE of Ohio, Appellee,

v.MYERS, Appellant.

No. 2014–1862

Supreme Court of Ohio.

Submitted December 5, 2017

Decided May 17, 2018

David P. Fornshell, Warren County Prosecuting Attorney, and Kirsten A. Brandt, Assistant Prosecuting Attorney, for appellee.

Timothy J. McKenna and Roger W. Kirk, Cincinnati, for appellant.

DeWine, J.{¶ 1} This is a direct appeal in a capital case. Austin Myers was convicted of aggravated murder with a death specification for killing his childhood friend Justin Back. We affirm his convictions and the imposition of the death penalty.

I. BACKGROUND

A. Planning and Preparation

{¶ 2} The case was tried to a jury. Much of the account of what happened came from Myers's friend and codefendant Timothy Mosley. According to Mosley, he and Myers began to concoct their scheme on January 27, 2014. That morning, Myers, who had just slept through the start of a new job, woke up Mosley and asked him whether he "wanted to make some money." When Mosley said he did, Myers suggested that they rob either a drug dealer he knew or "Justin Back's step dad, Mark [Cates]." Myers had once lived near Back's family. He and Back had attended seventh and eighth grades together and briefly had been friends until Back's mother told him he could no longer be around Myers. Myers had been in Back's home and told Mosley that Cates had a safe containing a gun and money that was "usually cracked open."

{¶ 3} Later that day, with Myers giving directions, Mosley drove them to the Waynesville area. As they approached Waynesville, Mosley realized that Myers had decided to rob Cates rather than the drug dealer.

{¶ 4} The two men arrived at the Cates house around noon. But when they got there, Back was at home, so they decided not to commit the robbery. Instead, they visited with Back for 15 to 20 minutes and then left. After leaving the house, Myers and Mosley went to the Waynesville library to discuss how to "get the money." According to Mosley, it was during this discussion that Myers "came up with the idea of killing Justin Back."

{¶ 5} Their first plan was to give Back a fatal injection. Mosley suggested using cold medicine, so they went to a Waynesville store to buy some. Mosley picked up four boxes of nighttime cold medicine, and Myers added a bottle of poisonous "bug wash." Myers carried these items to the checkout counter but could not complete the purchase because his credit card was declined. Then Myers tried to withdraw money from the store's ATM, but that did not work either.

{¶ 6} Empty-handed, the two left the store, and Myers directed Mosley to a nearby pharmacy, where Myers asked a clerk for syringes. When Myers explained that he wanted the kind with needles, the clerk referred him to the pharmacist. They stood in line briefly at the pharmacy counter but walked out without syringes.

{¶ 7} Myers and Mosley returned to the Cates house later in the day and watched a movie with Back. When Cates came home from work, he joined them in watching the movie for a short time until he and Back had to leave for an appointment with a Navy recruiter. At that point, Mosley and Myers left the house and drove to a McDonald's in Waynesville.

{¶ 8} In the McDonald's parking lot, the pair plotted "what to do * * * to further the plans." As Mosley tells it, he proposed returning immediately to the Cates house and breaking in while Cates and Back were away. But Myers rejected that idea, reasoning that they did not know how long Cates and Back would be gone. Instead, they went to their friend Logan Zennie's house, driving past the Cates house "to scout it out." Later, Myers, Mosley, Zennie, and a fourth man, named Cole, went to Mosley's house.

{¶ 9} At Mosley's house, while Zennie and Cole watched television downstairs, Mosley and Myers went to Mosley's room to "[come] up with another plan on how to get the safe." As they talked, Mosley wrote down their ideas in a small notebook.

{¶ 10} They hatched a scheme to strangle Back with a wire and then take the safe. The idea was to make it look as though Back had stolen the safe and run away from home. They planned to "take whatever [they] thought Justin would take"—specifically his "clothes, money, phone and charger"—and dump his body in a remote wooded area.

{¶ 11} According to Mosley, Myers then suggested that they kill Cates as well. Myers proposed that they "mak[e] it look like [Cates] killed [Back] and * * * ran off." Mosley testified that he opposed this idea because it would involve more work and greater risk.

{¶ 12} Their planning session complete, Mosley and Myers headed to a Lowe's store in Trotwood. Myers bought a three-foot length of galvanized steel cable and two metal rope cleats. Their intent was to fashion a garrote—or "choke wire" as Mosley called it—from these items by securing a cleat to each end of the cable.

{¶ 13} They returned to Mosley's room to put together their garrote, where Zennie walked in on them before they could hide the materials. At trial, Mosley could not recall precisely what they had told Zennie but said that they did not tell him what they planned to do with the garrote. In any event, Zennie put the garrote together for them.

{¶ 14} The next morning, Myers and Mosley bought more supplies. Mosley suggested buying ammonia, because he believed from watching crime shows that "it would destroy any DNA." Myers had the idea of purchasing "septic enzymes." He explained to Mosley that the cold weather would slow the body's decomposition; he thought they could speed up the process by pouring the enzymes on it. They drove to a store northwest of Dayton, where Myers bought ammonia, septic-tank cleaner, and rubber gloves.

{¶ 15} The pair returned to Waynesville. Myers intended to commit the crime around 1:00 p.m. Needing to burn some time, they browsed an antiques store for a while. At 12:48 p.m., they bought gas for the car. After driving past the Cates house several times, they pulled in the driveway around 1:00. The plan, according to Mosley, was for Myers to distract Back while Mosley came up behind him. Myers would hold Back down while Mosley choked him to death with the garrote. Mosley stuffed the garrote into one of his pockets. He also was carrying a five- or six-inch pocketknife.

B. The Murder

{¶ 16} Myers knocked on the door. Back answered and let the pair in. The three men talked for a while. At some point, Back asked Myers whether he wanted a drink. Myers said he did, so Back went with him to the kitchen. Mosley "saw the opportunity" and followed them.

{¶ 17} Back opened the refrigerator and bent down to get the drink. As Back was straightening up, Mosley looped the garrote cable over Back's head from behind and crossed his arms to pull it tight. At the same time, Myers grabbed Back to restrain him. Mosley kicked Back's feet from under him, and all three fell to the floor, entangled.

{¶ 18} Mosley, however, had not been able to get the cable around Back's neck; instead, it was looped around his chin. As Back struggled for his life—which took "a good couple of minutes"—he repeatedly asked "[W]hy[?]" and pleaded with his assailants to stop. Myers tried to "calm him down" by saying something "[along] the lines of it's all right, it's almost over."

{¶ 19} After Myers told Mosley that Mosley "had missed his throat and that [the wire] was wrapped around his chin," Mosley panicked, pulled out his knife, and stabbed Justin in the back. After that, Myers took hold of the garrote and managed to get it around Back's neck. Sitting on the on the kitchen floor with his back to the wall, Myers pulled on the garrote with Back lying in his lap. Mosley then began stabbing Back in the chest. When he was done, there was "blood everywhere."

{¶ 20} After Back died, Mosley and Myers hunted for the safe, which they found in a closet in the master bedroom. But contrary to their expectations, it was locked. (Cates testified that although he had previously left the safe unlocked because he had lost the combination, someone had inadvertently locked it, and he had not opened it for some time.) Myers also found a handgun belonging to Cates, which he loaded.

{¶ 21} The pair returned to the kitchen where they cleaned up the crime scene using ammonia, small rugs from the kitchen floor, and assorted rags and towels. They wrapped Back's body in a blanket and shoved it in the trunk of Mosley's car. Then they ransacked the house, taking the safe as well as some jewelry and credit cards. Myers filled some bags with Back's clothing. They also filled a laundry basket with more clothes and other items, including Back's headphones, glasses, laptop computer, phone charger, and laptop charger. They stuffed the bloody towels, rags, and rugs into a garbage bag. They loaded everything into Mosley's car and left the house by about 2:00 p.m.

{¶ 22} Andrew Raymond, a next-door neighbor of the Cates family, saw Mosley's car in the Cateses' carport early that afternoon. A silver Chevrolet Cavalier, the car had a distinctive appearance, its entire rear window having been replaced by a sheet of plastic held in place with red duct tape. A side window of the car sported a "Tap Out" sticker. Raymond had seen someone coming out of the back door of the Cateses' house. He did not recognize the person but knew it was not Back.

{¶ 23} While driving, Mosley developed "paranoia" about being followed, so he took side roads to a remote area, where he parked and checked the outside of the car for blood. Then he and Myers searched for Back's wallet, which they located in one of the bags. The wallet contained more than $100, which Myers took. The two continued on to Mosley's house.

C. Disposing of the Evidence

{¶ 24} Myers went into Mosley's house and rinsed the blood from his hands and arms. Meanwhile, Mosley unloaded stuff from the car to his bedroom. Together, they dragged the safe up the stairs and then changed their clothes. Mosley proposed dumping the body near West Alexandria, an area he...