State v. Robert G. Girts, 94-LW-4112
| Decision Date | 28 July 1994 |
| Docket Number | 94-LW-4112,65750 |
| Parties | STATE OF OHIO, Plaintiff-Appellee v. ROBERT G. GIRTS, Defendant-Appellant |
| Court | Ohio Court of Appeals |
Criminal appeal from Common Pleas Court, Case No. 293317.
FOR PLAINTIFF-APPELLEE: Stephanie Tubbs-Jones, Esq., Cuyahoga County Prosecutor By: Timothy Dobeck, Esq., Frank C. Gasper Esq., Assistant Prosecuting Attorneys, The Justice Center 1200 Ontario Street, Cleveland, Ohio 44113.
FOR DEFENDANT-APPELLANT: Henry F. DeBaggis, Esq., The Terminal Tower, Suite 842, Cleveland, Ohio 44113 and Robert G. Girts Trumbull Correctional Institution, P.O. Box 901, Leavittsburg, Ohio 44430-0901.
Appellant, Robert Girts, appeals from his conviction for murder. For the reasons set forth below, we reverse and remand for a new trial.
Appellant was indicted by a Cuyahoga County grand jury on February 9, 1993 for one count of murder in violation of R.C. 2903.01. The alleged victim was appellant's wife Diane Girts. Appellant pled not guilty to the charge.
On March 16, 1993, appellant moved for a change of venue claiming that pre-trial publicity concerning the death of Diane Girts, and speculation concerning the death of appellant's first wife in 1977, would deny him a fair trial. On April 19, 1993 the court denied appellant's motion for change of venue, indicating that it would re-consider its voir dire examination of potential jurors revealed any possibility of prejudice.
The matter proceeded to jury trial on May 28, 1993.
The first witness presented by the state was Dr. Heather Raaf, a deputy coroner for Cuyahoga County. Dr. Raaf testified that she performed an autopsy on Diane Girts on September 3, 1992. Dr. Raaf's examination of the body revealed no external injuries or marks, and nothing unusual internally except that the victim's liver mortis was "very red". Dr. Raaf testified that this coloring is sometimes indicative of carbon monoxide or cyanide poisoning. Dr. Raaf testified that tests for carbon monoxide were negative.
Dr. Raaf further testified that the victim's stomach contained eighteen ounces of a completely undigested substance, primarily pasta, fruit and vegetables. Dr. Raaf testified that the state of this matter indicated that the victim expired shortly after eating. Dr. Raaf testified that following this first round of tests, she could not sufficiently determine a cause of death.
Dr. Raaf continued that, based on prompting by police, she conducted further, non routine, tests for poisons such as cyanide, arsenic, and strychnine. These tests were conducted on September 21, 1992 and were positive for cyanide and negative for all other poisons. Dr. Raaf testified that the victim's stomach contained 3.6 milligrams of cyanide per deciliter of content and characterized this as a large amount. Dr. Raaf further testified that a concentration of .23 milligrams of cyanide per deciliter was found in the victim's blood. Dr. Raaf testified that the levels of cyanide in the victim's stomach was consistent with ingestion and that the level in the bloodstream was more than twice what is considered a lethal dose. Dr. Raaf then testified that in this case, death probably occurred 5-20 minutes after ingestion.
In addition, Dr. Raaf testified that cyanide looks like table salt, and has an odor and taste that, if detected, are easily masked. Dr. Raaf testified that cyanide's lethal quality arises when it interacts with stomach acids, depriving the body of oxygen and causing asphyxiation. Further, Dr. Raaf testified that the chemical symbol for potassium cyanide is KCN.
Dr. Raaf testified that her ruling on the case was that the cause of death was acute cyanide intoxication and the manner of death was homicide. Dr. Raaf admitted that the manner of death was at first undetermined, but was ruled homicide after the full coroner's investigation.
Finally, Dr. Raaf testified that a pasta salad could have masked the taste of cyanide; that cyanide taken straight will cause ulceration which was not found in the victim, and that the investigation and testing revealed no tampering with medications found in the Girts' home.
The state's second witness, Dr. Craig Sutheimer, is the Chief Toxologist at the Cuyahoga County Coroner's office. Dr. Sutheimer testified that he conducted toxicology screening on Diane Girts, and corroborated the findings established by Dr. Raaf. Further, Dr. Sutheimer testified that liquid in the victim's stomach could have been consistent with coffee, but that he did not have test results for caffeine.
The state's next witness, Mickey Adams, is a patrolman in the Parma Police Department. Patrolman Adams testified that he videotaped the Girts' residence shortly after the body of Diane Girts was discovered. This video tape was shown to the jury with Adams' commentary. Patrolman Adams testified that there were no signs of a forced entry to the residence and no signs of injury to the victim. Patrolman Adams further testified and pointed out on the tape that a lady's razor was floating in the bathtub, a crumpled piece of paper was in the waste basket, and the victim's curling iron was plugged in and turned on. Finally, Patrolman Adams testified that the bedroom was neat and orderly.
The state's next witness, Kathy Kidston, testified that she was a fifteen-year-old friend of Diane Girts. Kidston testified that she lived in Youngstown but spoke weekly and visited monthly with Diane. She further testified that she visited Diane one and one half weeks before her death, staying overnight.
Kidston continued her testimony stating that Diane was in good spirits and had no complaints of marital difficulty. She further testified that she invited appellant, who was to be visiting Youngstown later that week, to stop and visit. Kidston then testified that appellant did visit, the two had lunch, and that appellant asked her to take him back to her apartment. Kidston testified that she was taken aback by this question, and responded no. Kidston testified that she and appellant were only friends.
Finally, Kidston testified that on the night of September 2, 1992, appellant came to her house to tell her that his wife had died.
The state's next witness, Francis Rome of Elmira, New York, testified that she was a close friend of Diane Girts for over 30 years. Ms. Rome testified that on September 2, 1992, at approximately 9:40 a.m. she received a call from Diane Girts, and that the two spoke for approximately 40 minutes. Ms. Rome testified that they talked about Diane's new house and about plans for Diane and appellant to visit in November. Rome testified that Diane expressed concern over accommodations for her dog during that visit. In addition, Rome testified that Diane stated that she was in a hurry that morning, because she had to clean the house, run errands, and get to work.
Rome continued her testimony stating that on September 3, 1992, appellant called and said Diane died. Rome testified that appellant called two weeks later, and indicated that Diane died from a small hemorrhage. Finally, Rome testified that she felt Diane had come to grips with her infertility and was in good spirits about her new house.
The state's next witness, Elizabeth Bethea, is an interior designer from Mansfield, Ohio. Bethea testified that she and appellant had been intimate friends in 1978 and 1986, and resumed their relationship in January 1992. Bethea testified that she saw appellant once a month in early 1992 and spoke with him on the phone more frequently. According to Bethea, appellant would not give her his home phone number, and did not indicate that he was married. Bethea then testified that upon confronting appellant in April, she learned he was married, but said he was in the process of getting a divorce. Bethea recalled that appellant had told her a similar "story" during their earlier relationships.
Bethea testified that her intimate relationship with appellant continued through the summer. Bethea further testified that on August 30, 1992, appellant called her and mentioned going to Chicago with his brother. Bethea continued, stating that appellant indicated that his wife was staying in the house while he was in Chicago, but would be gone once he returned. Bethea then testified that on September 9, 1992, appellant called to say that his wife died. Bethea testified that appellant called her again on October of 1992 and acted very strange in that he was overly formal and stated, Bethea testified that in other conversations, appellant indicated a suspicion that his telephone was being tapped by police. Additionally, Bethea testified that she told an attorney friend of these conversations and he advised her to call the police, which she did.
Finally, Bethea testified that she told appellant about calling the police and he said, "There is no crime in your being my interior decorator," and "just be brief."
The state's next witness, Mary Damico, testified that she is the office manager at Allstate Barber College. Damico testified that Diane Girts worked as Allstate's financial aid officer Tuesday, Thursday and Friday 9:00 to 5:30 p.m. Damico testified that she met Diane and appellant at the Valley City fair the Saturday before her death, and worked with her the day before her death. Damico felt that Diane was in "good spirits" and "looked great." Damico indicated that Diane never spoke of marital troubles or divorce.
Damico's testimony continued that at 1:00 p.m. on September 2, she received a call from a Mr. O'Neill at Hickok...
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