State v. Nobles

• Decision Date: 01 September 1995
• Docket Number: No. CA,CA
• Citation: 106 Ohio App.3d 246,665 N.E.2d 1137
• Parties: The STATE of Ohio, Appellee, v. NOBLES, Appellant. * 14480.
• Court: Ohio Court of Appeals

Page 246

106 Ohio App.3d 246

665 N.E.2d 1137

The STATE of Ohio, Appellee, v. NOBLES, Appellant. ^*

No. CA 14480.

Court of Appeals of Ohio Second District, Montgomery County.

Decided Sept. 1, 1995.

Mathias H. Heck, Jr., Montgomery County Prosecuting Attorney, and M. Catherine Koontz, Assistant Prosecuting Attorney, Dayton, for appellee.

Larry J. Denny, Dayton, for appellant.

FREDERICK N. YOUNG, Judge.

Tanisha Nobles was tried on two counts of a three-count indictment for the murder of her son, Erick Nobles, and for the gross abuse of his corpse. She was convicted by a jury on both counts, and by the court for the third, following her no contest plea to the charge of inducing panic. She was sentenced to incarceration for fifteen years to life in the Ohio Reformatory for Women on the murder conviction, to be served consecutively to a sentence of eighteen months for gross abuse of a corpse. A sentence of six months was imposed for inducing panic, which was to run concurrently with the other two.

There is no question that Nobles was convicted on the strength of the confession she made to Dayton homicide detectives on January 12, 1993, the culmination of nearly a week of frenetic investigation into Erick Nobles's disappearance. She related how, on December 26, 1992, while giving her son a bath, she pushed his head under the water and held it there until he stopped struggling. She then turned him over and felt for a heartbeat. When she found none, she lifted him out of the water and laid him on his bed, dried, and dressed him. She put Erick's body into a green plastic garbage bag, which she placed in his bedroom closet. A few days later, she removed Erick's body from the closet and threw it into a trash dumpster near her apartment.

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Nobles brought a motion to suppress her confession, but was unsuccessful. From her subsequent conviction and sentence she brings this appeal, raising nine assignments of error. We will discuss the additional facts of this case as they are relevant to each of the assignments of error below.

I

"The trial court's failure to take sufficient measures to avoid the adverse consequences of pretrial publicity denied appellant's right to a fair and impartial jury trial as guaranteed by the Ohio and United States Constitutions."

The media's interest in this case began with Nobles's false report of her son's abduction from the Salem Mall on January 7, 1993. That report immediately generated a number of articles in the Dayton Daily News, as well as local television and radio coverage. The majority of the pretrial newspaper articles appeared within one week of Erick's reported abduction, and the record reveals that the latest of them appeared on February 5, 1993. Some of the articles contained details of Nobles's confession to the killing of her son, and others of them contained statements by police officers who would later appear as prosecution witnesses. The initial spate of media attention apparently subsided after early February 1993, but peaked briefly again when coverage was permitted of Nobles's April 22-23, 1993 suppression hearing, at which the circumstances surrounding the making of her confession were examined.

In light of the probability that any potential juror in Montgomery County would have been exposed to a good deal of information about this case, and to Nobles's confession in particular, the trial court was obligated to ensure that the jurors who sat in judgment of her would not have formed an opinion of her guilt that they would be unable to set aside. Nobles alleges that the trial court did not ensure that her jury would be so impartial, specifically faulting the court for failing to grant her motion for a change of venue, for voir diring the veniremen itself on the extent of their pretrial exposure to the case and forbidding counsel to do any questioning on the issue, and for failing to adequately warn the jurors not to read, watch, or listen to anything about the case in the media while the trial was underway.

First, we note that "a decision to change venue is within the trial court's discretion. * * * An appellate court will not reverse such a decision absent a clear showing that the court abused its discretion." State v. Herring (1984), 21 Ohio App.3d 18, 18, 21 OBR 19, 19, 486 N.E.2d 119, 120. In making its decision, the trial court examines the totality of the surrounding facts to determine whether pretrial publicity is likely to have created such an atmosphere in the county where the charge is pending that an impartial jury cannot be seated there.

Page 258

See Crim.R. 18(B). The court's best opportunity to discover the extent and the strength of any community prejudice against the accused is to attempt to seat a panel and to examine the veniremen on the issue during voir dire. State v. Thompson (1987), 33 Ohio St.3d 1, 5, 514 N.E.2d 407, 412. Then, " 'where it appears that opinions as to the guilt of the defendant of those called for examination for jurors are not fixed but would yield readily to evidence, it is not error to overrule an application for a change of venue.' " Id., quoting State v. Swiger (1966), 5 Ohio St.2d 151, 34 O.O.2d 270, 214 N.E.2d 417, paragraph one of the syllabus.

A voir dire examination into pretrial publicity is not deficient for failing to uncover the details of every article or broadcast to which the veniremen have been exposed. Mu'Min v. Virginia (1991), 500 U.S. 415, 111 S.Ct. 1899, 114 L.Ed.2d 493. The voir dire conducted, whether by the court or by counsel, is sufficient if it reveals that the jurors will be able to set aside any impression they formed on the basis of pretrial publicity and to decide the case solely on the law and the evidence presented at trial. See id.; State v. Spirko (1991), 59 Ohio St.3d 1, 24, 570 N.E.2d 229, 254-255.

At a pretrial conference held February 3, 1994, the court announced that it would do all of the questioning on pretrial publicity, and that counsel was not to inquire into that issue when voir dire was turned over to them. The court invited counsel then to submit questions they would like the court to ask the veniremen, adding that the submissions did not need to be filed unless counsel wanted to do so in order to make a record. Though it seems that defense counsel did submit questions to the court, they did not file them, nor was any motion made pursuant to App.R. 9(E) to make them part of the record. They did not object during the pretrial nor during the voir dire itself either to the fact that the court proposed to conduct all of the questioning about pretrial publicity, nor to any refusal of the court to ask the questions they submitted. The court's examination of the veniremen on the issue of media coverage ran as follows:

"The events giving rise to these charges received some attention from the news media. By news media is meant the Dayton Daily News and the local radio and TV stations. Do any of you recall reading anything in the newspaper or hearing or seeing anything on the radio or on television concerning these events, or this defendant? Again, if your answer is yes, please raise your hand. Okay.

"Keep your hands up, or remember that your hand was up. You can take them down and I will ask you the next question.

"While not intending to be derisive of the media, do all of you understand that the media reports may or may not be totally accurate? Certainly due to the limitations of space in the newspaper and time constraints on the electronic

Page 259

media, rarely are reports complete. For those of you who indicate that you remember any such matters relating to this case, do you remember specifically what you heard or saw?

"You had your hand up before. I want you to think. Do you just remember vaguely something about that or do you remember specifics? If you remember specifics, raise your hand. Okay. You can put your hands down again.

"For those of you who raised your hands on that last question, do any of you who do remember facts of this case or specifics that were reported, do any of you feel that--or do you feel that you can put aside any such recollections and not permit them to influence your decision in this case if selected as a juror? Can you decide this case solely on the evidence presented in this courtroom?

"The bottom line question is: do each of you feel that you can be a fair and impartial juror if selected as a member of this jury?

"Is there anyone who feels that he or she cannot be a fair and impartial juror if selected as a member of this jury because of something he or she may have heard or seen? Would you please raise your hand.

"From your hands being down and from your silence, then I take that to mean that all of you realize that all you can consider, if you are a juror in this case, is the evidence that's presented in this courtroom. And that you must set aside anything you may have seen or heard before. I assume that is correct.

"If there is anyone who feels they can't follow that now, then let us know now. Remember, there are no right or wrong answers.

"Now have any of you discussed with anyone or overheard any discussion about this case or about the defendant, Tanisha Nobles? Again, if your answer is yes, raise your hand.

"Anyone talk about this to anyone, you know, just, even mentioned it? Okay.

"Now, if you have either discussed this matter or heard someone else talk about it, can you set aside what you heard or what you said and base your decision in this case on the evidence presented in this courtroom? Anyone who can't, raise your hand. Raise your hand, if you cannot. Okay.

"Again, all of those questions which preceded, for the record, there have been no hands raised. And so we will proceed."

The voir dire was then turned over to counsel. The prosecutor broached the media subject with the veniremen again:

"You know it is okay to read the newspaper and watch TV. There is nothing wrong with that. We all do that. We should do...