State v. Rosalie Grant, 90-LW-3786

CourtUnited States Court of Appeals (Ohio)
Docket Number90-LW-3786,83 CR 385,83 C.A. 144
Decision Date09 November 1990



No. 83 C.A. 144, 83 CR 385

90-LW-3786 (7th)

Court of Appeals of Ohio, Seventh District, Mahoning

November 9, 1990


Criminal Appeal from the Common Pleas Court, Case No. 83 CR 385

Vincent E. Gilmartin, Joseph Maxin Special Asst. Prosecuting Attorneys, 42 N. Phelps St. Youngstown, Ohio 44503, for Plaintiff-Appellee.

Randall M. Dana Ohio Public Defender, S. Adele Shank Asst. Public Defender, 8 E. Long St., 11th Floor, Columbus, Ohio 43266-0587

Hon. Norman J. Putman, Hon. W. Scott Gwin, JJ., of the Fifth Appellate District; Hon. Edward J. Mahoney, Ret. J., of the Ninth Appellate District, Sitting by Assignment


Appellant, Rosalie Grant, appeals from the judgment of the Court of Common pleas sentencing her to death for the aggravated murders of her two infant children. We affirm.


Rosalie Grant was indicted on two counts of aggravated murder pursuant to R.C. 2903.01(B), with each count carrying specifications pursuant to R.C. 2929.04(A) (5) and (A) (7). The aggravated murder counts charged Grant with purposely causing the death of Donovan Grant and Joseph Clinkscale while committing an aggravated arson. The R.C. 2929.04(A) (5) specifications alleged that the offense of aggravated murder was part of a course of conduct involving the purposeful killing of two persons. The R.C. 2929.04(A) (7) specifications alleged aggravated arson as the predicate felony and that Grant was the principal offender in the commission of the aggravated murders. Grant was charged in a third count with aggravated arson, R.C. 2909.02(A) (1).

Grant was found guilty by a jury of all offenses and specifications. A mitigation hearing was held after which the jury recommended that Grant be sentenced to death. This recommendation was accepted by the trial court, which also sentenced Grant to seven to twenty-five years on the aggravated arson conviction.

Donovan Grant, born April 2, 1982, and Joseph Clinkscale, Jr., born March 20, 1981, died in a fire at 3127 Orrin Avenue on April 1, 1983. Rosalie Grant was living in the house at 3127 Orrin Avenue owned by her grandmother. The fire was called in to the Youngstown Fire Department at 6:11 a.m. on April 1st. Subsequent investigation determined that the blaze was confined to the children's bedroom. The fire was determined to have been fueled with an accelerant indicative of a flammable liquid. Evidence was found that a flammable liquid had recently been applied to an electric circuit box in the basement. An apparently recently discarded can of charcoal lighter fluid bearing Grant's fingerprints was discovered near the house. Shortly before the fire, Grant had taken out insurance policies on the lives of the children with herself as primary beneficiary.

Grant alleges thirty-five assignments of error. The evidence is described in more detail throughout our disposition of the assigned errors. We have additionally performed our independent review of the appropriateness of the sentence of death, as required by R.C. 2929.05.



Grant filed a motion to suppress evidence resulting from searches conducted at 3127 Orrin Avenue on April 1st and April 5, 1983. The motion was denied by the trial court.

At the hearing on the motion to suppress, it was revealed that there were entries into 3127 Orrin Avenue on three separate days by police and fire department personnel, April 1st, 5th and 14, 1983 (there is some confusion in the record whether the third entry occurred on April 13th or 14th, but the most common date testified to was April 14th and this is the date cited by the parties in the briefs). All of the entries were conducted without a warrant.

At the suppression hearing, Youngstown Fire Department Chief inspector John Zamary testified that his duties included fire prevention, fire inspection and arson investigation. On April 1, 1983, Zamary was notified around 8:30-8:45 a.m. by fire department arson investigator Thomas Naples that there had been a fire death at Orrin Avenue and the Fire Chief wanted them to go to the scene. When Zamary arrived around 9:30 a.m., Naples was already present and had been since around 9:00 a.m. Also present when Zamary arrived were Fire Chief Onesti and Robert Fullerman of the Youngstown police Department Crime Lab. Zamary testified that his records indicated that the Chief in charge of fighting the fire had reported that he was available for other duties at 7:51 a.m.

Zamary stated he entered the house to determine the cause of the fire. He did not believe there was any danger of the fire rekindling. Inside the house, the air was permeated with an odor of kerosene or charcoal lighter fluid. Zamary examined the entire house to find a source for this odor. In the basement, Zamary saw an oily substance on an electric circuit box having the same odor as that in the air. Zamary instructed Fullerman to take some wiring from the children's bedroom (this wiring was not used as evidence at the trial) and samples from the circuit box in the basement (this was admitted at trial as State Exhibit 23). Fullerman also took some photographs (State Exhibits 1-2, 6-7 at trial). Zamary also took some photographs, which turned out to be unsatisfactory. At some point during Zamary's presence at the scene, Angelo Kissos (a Youngstown police Department detective and Coroner's investigator) arrived. Zamary recalled leaving 3127 Orrin Avenue sometime around 1:00-1:30 p.m. Zamary testified that, on April 1, 1983, he was satisfied that the fire was intentionally set. Zamary passed this opinion on to Michael Landers (a detective with the Youngstown Police Department) on April 1st.

Sometime after April 1st, Zamary contacted Fire Chief Donald Cover and asked him to examine and photograph the scene. Zamary stated that Cover was an expert in fire scene photography. On April 4th, Zamary contacted the city prosecutor's office and asked if it were necessary to get a search warrant to re-enter the house in order to get a good set of pictures. Zamary was advised that no warrant was necessary to re-photograph the scene. Zamary and Cover went back to 3127 Orrin Avenue on April 5, 1983. They entered through the back door, which was ajar. Cover took some photographs. Zamary testified no one else was present at the scene at the time.

Zamary testified he was also at the scene a third time, with Cover and Lee Brininger, an investigator hired by the Ohio Fair Plan Underwriting Association, the insurance company for Rose Carson, the owner of the property. Zamary stated that Brininger asked him to be present. Additional photographs were taken by Cover. Brininger took some physical evidence (not admitted at trial). (Brininger also took photographs, which were admitted as State Exhibits 27-84).

Detective Michael Landers testified at the suppression hearing that, around 10:00 a.m. on April 1, 1983, he was notified by the Chief of Detectives that a possible homicide was involved with the fire. This information had been given to the Chief of Detectives by Angelo Kissos who had observed the dead children at the hospital. The children had fractured skulls which led to the suspicion of homicide.

Landers arrived at 3127 Orrin Avenue around 11:00 a.m. along with Detective Blanchard (who did not testify at trial). Landers stated that no one else was at the scene at that time. Landers, who was not a trained arson investigator, looked through the house and found a jar of turpentine in a cupboard (this jar was not evidence at trial). Landers and Blanchard then left, to return again around 12:30 p.m. In the interim, Landers learned that the skull fractures observed on the children were in fact thermal fractures. Landers also spoke with Grant around 11:45 a.m. and also spoke with Zamary at the fire station. Zamary told Landers of his observations and that he believed the fire to be an arson. Landers returned to the scene to see if there was evidence of arson.

When Landers and Blanchard arrived back at the scene around 12:30 p.m., Fullerman was there. Landers did not know if Fullerman had been there earlier. Kissos arrived later. Landers told Fullerman to take some photographs. Landers stated that the evidence from the electric circuit box was taken at this time.

Landers was also at the scene on April 5th with a Lieutenant Campana (who did not testify at trial) and Anita Davis (of the Youngstown police Department Crime Lab). Donald Cover was not there. Davis took one photograph inside the house (State Exhibit 16) and some of a vacant building not part of the house (State Exhibits 10-11, 13-15). Defense counsel stated he was not concerned with the vacant building in the suppression motion.

Boardman Fire Chief Donald cover testified at the suppression hearing that he and Zamary were at 3127 Orrin Avenue on a Tuesday (April 5th). The house was not boarded up or secured. Cover did not recall what Zamary may have told him prior to April 5th. Cover was also present with Zamary and Brininger. Cover took fifty to seventy-five or more photographs during his visits to the scene. Based on his personal observations and other information available to him, Cover formed an opinion as to the cause of the fire. (Cover testified at trial and illustrated his testimony with slides from his photographs).

Robert Fullerman testified at the suppression hearing that, around 8:30 a.m. on April 1st, he was told to photograph the dead children at the hospital. He finished at the hospital around...

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