State v. Pickens

Decision Date14 December 2018
Docket NumberAPPEAL NO. C-170204
Citation2018 Ohio 4994
PartiesSTATE OF OHIO, Respondent-Appellee, v. MARK PICKENS, Petitioner-Appellant.
CourtOhio Court of Appeals

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings, Assistant Prosecuting Attorney, for Respondent-Appellee,

Kendra Roberts, Assistant State Public Defender, for Petitioner-Appellant.

Per Curiam.

{¶1} Petitioner-appellant Mark Pickens appeals the Hamilton County Common Pleas Court's judgment dismissing his petition under R.C. 2953.21 for postconviction relief. We affirm the court's judgment.

{¶2} In 2010, Pickens was convicted of rape, having weapons while under a disability, and three counts of aggravated murder. For each murder, he was sentenced to death. The Ohio Supreme Court affirmed his convictions in 2014. State v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023.

{¶3} Pickens also sought relief from his convictions in the 2011 postconviction petition from which this appeal derives. In 2012, the common pleas court entered judgment dismissing the petition. On appeal, we reversed that judgment and remanded the case, upon our determination that Pickens had been denied due process when the common pleas court dismissed the petition upon findings of fact and conclusions of law that had been submitted ex parte by the state, without affording Pickens notice of that submission or an opportunity to respond. State v. Pickens, 2016-Ohio-5257, 60 N.E.3d 20 (1st Dist.).

{¶4} On remand, the state filed proposed findings of fact and conclusions of law and notified Pickens of that filing, and Pickens filed his own proposed findings of fact and conclusions of law. In 2017, the common pleas court again entered findings of fact and conclusions of law and dismissed the petition. In this appeal from that judgment, Pickens advances four assignments of error.

The Evidence

{¶5} Pickens was convicted of rape and aggravated murder upon evidence that on June 2, 2009, two days after Noelle Washington had reported to police that Pickens had raped her, he entered Washington's apartment and fatally shot her, her nine-month-old son, and her friend's three-year-old daughter.

{¶6} Washington, having dated Pickens for several months, had recently decided to end the relationship and move to another state. At his invitation, she visited his apartment on the morning of May 31. Surveillance video of the hallway outside Pickens's apartment showed Washington, 90 minutes later, as she emerged from Pickens's apartment with disheveled hair and clothing, pounded on a neighbor's door, returned to his apartment, struggled with him in the hallway, and returned to the neighbor's apartment. The video then showed Pickens leaving the scene, and the police arriving.

{¶7} Washington told the neighbor and the police at the scene and during a recorded interview that when she had refused Pickens's demand for sex, he displayed a handgun, restrained her, removed her clothes, forcibly raped her, and gun in hand, threatened to kill her and himself, and that when she had told him that she was calling the police, he pummeled her, took her cell phone, shoved her out of his apartment, and fled the apartment building. Washington also told the police that Pickens had subsequently texted her to ask her if she was "going to try to set him up," and that Pickens's mother had called to tell her that Pickens knew that Washington had spoken with the police. The police then recorded a phone call between Washington and Pickens, during which Pickens denied having sex with or hitting Washington and chastised her for talking to the police and "[telling] them everything."

{¶8} Washington's rape exam revealed fresh bite marks and lacerations consistent with recent, nonconsensual sex. And she repeated her rape and assault allegations against Pickens in phone conversations with her mother, her sister, her stepbrother, and her friend, Crystal Lewis, the mother of Pickens's three-year-old victim, Sha'railyn Wright.

{¶9} Washington also expressed to Lewis her concern that, in addition to her cell phone, Pickens had her house keys. And Washington's mother received a text message from Washington's phone, stating, "This MARK I DO NOT WANNA BE WIT YO DAUGHTER." Washington's sister followed up with two phone calls and a text toWashington's phone number, prompting responses that included the threat, "[I]f I go to jail, then I am going to fuck her up."

{¶10} That evening, Pickens went to the home of another girlfriend, told her that he was angry because he had been accused of rape, and unsuccessfully solicited her participation in beating up his accuser. When Pickens and the woman parted, she observed a gun in the waistband of his pants and later received a text message from him, stating, "I feel like killing someone."

{¶11} The next morning, June 1, two police detectives went to Pickens's apartment to question him about Washington's allegations. When no one answered the door, one detective wrote, "Please call me," on the back of a business card and left the card in the door.

{¶12} That evening, Washington was home with her nine-month-old son, Anthony, and three-year-old Sha'railyn Wright. Earlier in the evening, Washington's cousin stopped by, and Washington repeated her rape allegation and again expressed her fear of Pickens and her concern that he had her house keys.

{¶13} Beginning at 11:12 p.m., Washington and Sha'railyn's mother, Crystal Lewis, exchanged text messages, beginning with Washington's message, "I jus woke up mark was comin thru the kitchen," continuing with Lewis's expressions of concern that Pickens could return, and ending with Washington's final message at 11:49 p.m., acknowledging Lewis's message that she was on her way to pick up Sha'railyn.

{¶14} Two witnesses testified that they had seen Washington outside her apartment building at approximately 11:40 p.m., in the midst of an animated conversation with a man subsequently identified by those witnesses as Pickens. One witness continued to observe the pair as they entered the apartment building. The witness then heard loud music and "two pops; boom, boom," then "another pop, pop," and still "another pop, pop," and the music stopped. A short time later, Lewis arrived at Washington's apartment and found the apartment door open and Washington and the two children dead.

{¶15} The crime-scene investigation revealed no signs of forced entry or a struggle, no firearm in or around the apartment, and no house keys. When the police learned that Washington had filed rape charges against Pickens on May 31, he was identified as a suspect in the murders and arrested.

{¶16} Autopsies of the victims showed that Washington had died from a single gunshot wound to the back of the head, her son had died from a close range gunshot wound to the forehead, and Sha'railyn Wright had sustained close-range gunshot wounds to two fingers on her left hand and a fatal wound behind her left ear. Three .45-caliber shell casings and a projectile were recovered from Washington's apartment. In a search of Pickens's apartment, a box containing 43 rounds of .45-caliber ammunition was recovered from his closet. The casings recovered from the crime scene, along with the three .45-caliber-automatic hollow-point bullets recovered both from the scene and during the victims' autopsies, were determined to have been fired from the same .45-caliber handgun. And the ammunition found in Pickens's closet was deemed compatible with the weapon that had fired the bullets recovered in the autopsies.

{¶17} The police recovered from Pickens's apartment Washington's son's social security card, debit and public-assistance cards in Washington's name, a bicycle, and a jacket. The cuffs and sleeves of the jacket, which had been wet when the jacket was seized, tested positive for the presence of gunshot residue. Tests of lifts taken from the bicycle frame, seat, handlebars, and handles revealed the presence of primer residue consistent with contact with primer residue on another item.

{¶18} The police also reviewed surveillance video showing the hallway outside Pickens's apartment on May 31 and his arrivals and departures from his apartment on June 1 and 2. The May 31 video substantiated Washington's statement to the police concerning the events in that hallway and showed that, when the officers had knocked on Pickens's door, he had been present, but did not respond. The June 1 hallway video showed Pickens leaving his apartment at 7:33 a.m., the detective leaving his card in thedoor of the apartment at 10:44 a.m., and Pickens returning to his apartment at 10:32 p.m., taking the card from the door, and five minutes later, leaving his apartment with his bicycle, wearing the jacket that later tested positive for gunshot residue. The June 2 outside video showed Pickens returning on his bicycle to his apartment building at 12:04 a.m., while the June 1 hallway video showed him returning with his bicycle to his apartment at 11:58 p.m. That discrepancy was found to be attributable to the timer on the outside video being five minutes fast and the hallway video being two minutes slow. The police subsequently clocked the trip by bicycle between Pickens's and Washington's buildings at less than four minutes.

{¶19} In his June 2 statement to police, Pickens denied raping Washington on May 31 or killing her on June 1. DNA testing had identified Pickens as the source of semen on a vaginal swab collected from Washington. Nevertheless, Pickens asserted that they had not had sex since earlier that week, and that they had done nothing more than "play[] rough" on May 31. Washington, he insisted, had left his apartment with his phone and then texted him that she had called the police because he had taken her phone and had "pulled her hair and stuff."...

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