State v. Simko

• Decision Date: 30 December 1994
• Docket Number: No. 93-569,93-569
• Citation: 71 Ohio St.3d 483,644 N.E.2d 345
• Parties: The STATE of Ohio, Appellee, v. SIMKO, Appellant.
• Court: Ohio Supreme Court

Page 483

71 Ohio St.3d 483

644 N.E.2d 345

The STATE of Ohio, Appellee, v. SIMKO, Appellant.

No. 93-569.

Supreme Court of Ohio.

Submitted Nov. 30, 1994.

Decided Dec. 30, 1994.

Defendant-appellant, John Simko, Jr., was convicted by a three-judge panel of the kidnapping and aggravated murder of his ex-girlfriend, Mary Jane Johnson, and the kidnapping of her coworker, Harold "Buddy" Baker. The crimes were committed the morning of August 7, 1990, at the Lorain Durling Elementary School where the victims worked. The following events led to this tragedy.

Appellant and Mary Jane Johnson had had an on-again-off-again relationship for approximately five to seven years. At the time of the shooting, the couple had been apart for about one to four weeks.

On August 2, 1990, appellant entered the Magnum-Fire Gun Shop in Lorain, Ohio, and expressed an interest in purchasing a .357 Magnum Smith & Wesson revolver. On August 3, 1990, he returned to the store and bought the gun and a box of ammunition. That same day, appellant went to his cousin Larry Simko's house to learn how to use the weapon.

Three days Not finding appellant's car, they drove to Hembree's house. When they arrived there, they observed appellant driving stop-and-go through the neighborhood in his car. Johnson ran into Hembree's house and again expressed fear. Because Johnson was unwilling to do so, Hembree called the sheriff's department to report appellant.

later, on August 6, around 10:30 p.m., Johnson and her best friend and neighbor, Mary Hembree, were sitting on Johnson's porch drinking coffee. They saw appellant walk by the house. He appeared to be intoxicated. After Johnson expressed fear at seeing appellant, the women decided to finish their coffee at Hembree's house. Before going to Hembree's, however, they watched appellant walk past Hembree's house. They then entered Hembree's car and drove around to determine if appellant's car was parked nearby. From the car they saw appellant on an adjacent street, behind Johnson's house.

Several hours later, at approximately 1:00 a.m., on August 7, appellant went to his son James Simko's house. Appellant woke him up and had him drive to Tiny's Bar.

At the bar, appellant had a few more drinks. Appellant told his son that he was going to shoot himself and Johnson and that he wanted to prepare a will. Appellant wrote on a piece of paper, "I leave Jim my TV 2 VCRs a chair, & boat air compressor battery charger, tools, & whatever I own." Appellant signed his name and then had a patron of the bar witness his signature. In addition, appellant wrote a check to James Simko to exhaust the balance of his bank account. The men stayed at the bar until it closed.

After leaving the bar, James Simko drove his father home. They stayed there for approximately ten to twenty minutes. At about 3:00 a.m., since he had to be at work by 6:00 a.m., appellant asked James to drive him to Lorain Clearview High School, where he worked as a custodian. At the school, appellant grabbed a bottle of whiskey and made some coffee, which James drank. Appellant had one or two shots of whiskey and a coke.

At around 4:00 a.m., when James was out of the room, appellant called his cousin, Larry Simko. Appellant asked Larry to hide his (appellant's) boat and told him that he was "going to shoot two people." Although Larry testified he did not take appellant's threat seriously because he thought appellant was drunk, Larry admittedly dressed and went looking for appellant.

James Simko stayed with his father until 5:50 a.m., when he dropped him off at nearby Durling Elementary School where Johnson worked as a cleaner. James did not think his father was drunk, just "hung over." Although James did not take his father's threat seriously, he admittedly drove by the school three times that morning.

At around 6:00 a.m., Harold Baker, a fellow custodian, arrived for work at Durling. He saw appellant walking toward him. Baker thought appellant might have been drinking, but he did not think he was drunk. Upon appellant's request When Johnson arrived for work, soon after 6:00 a.m., Baker met her at the front of the building, and told her of appellant's request. Johnson went to the teachers' lounge. Upon hearing Johnson scream his name, Baker ran to the lounge, unlocked the door and saw appellant with his left arm around Johnson and a gun in his right hand. Johnson was crying, and appeared to be scared and nervous. Appellant yelled at Baker to "get the hell out," but when Baker attempted to exit the lounge to the hallway, appellant said, "No, not there," and instead directed Baker to go into the restroom located in the lounge.

to "have five minutes" with Johnson, Baker unlocked the school and appellant accompanied him to the teachers' lounge. Baker did not notice whether appellant had a gun.

Once in the restroom, Baker locked the door and, after removing the screen, escaped through the window. Baker then drove his truck to the nearby bus garage to find someone to call the police. While the police were being summoned, Baker saw a student being dropped off at school. Baker jumped in his truck to stop the boy from entering the school.

When Baker arrived back at the school, he saw the youth starting down the hall. Baker apprised him of the situation. As the two were starting to leave, Baker saw appellant shoot himself in the foot, as he stood in the doorway of the lounge.

Baker and the boy left the school. Once they were outside, Larry Simko approached Baker and asked him if he had seen appellant. Baker told him what was happening. Larry entered the school and shouted out to appellant. After hearing two shots, the men decided to leave. Back at the bus garage, the men then heard two more shots around 6:40 a.m.

It was later determined that the first two shots had been fired at the lounge's door lock, and the second two shots had been fired at Johnson.

Sometime later, around 8:30 a.m., the rescue squad came and took Johnson to the hospital.

Upon her arrival at the hospital, Johnson was alert and oriented. Just before surgery, Johnson was interviewed by Detective Bruce Johnston of the Lorain County Sheriff's Department. Although Johnson was unable to talk because she was intubated, she nodded her head in response to the detective's questions. Detective Johnston testified that Johnson nodded affirmatively when asked if appellant had told her he was going to kill her and kill himself, and if she had attempted to run from the appellant. Johnson also nodded yes to whether appellant shot her twice and then fled from the school building. Despite efforts to save her, Johnson died one day later from injuries caused by the gunshot wounds.

Police found appellant walking in the area and arrested him. Expert testimony indicated that appellant's blood-alcohol level at the time of the shooting would have been about .14 percent.

On August 14, 1990, appellant was indicted for two counts of kidnapping and one count of aggravated murder with a felony-murder specification alleging kidnapping and a firearm specification. The three-judge panel convicted appellant as charged.

Appellant called several family members, coworkers, and a clinical forensic psychologist during the sentencing hearing. Most family members acknowledged that appellant had a drinking problem. Some said that when drunk he was more likely to be aggressive and mean. All the family members and coworkers related specific instances where appellant had been thoughtful and caring. These included the care of his elderly and arthritic mother, who witnesses testified was a demanding and difficult person. In addition, appellant's stepson told how appellant had supported his ex-wife, both emotionally and financially, while she was dying of cancer. The stepson also detailed the help appellant had provided to him, a paraplegic. A coworker testified to appellant's strong work ethic and the work he did overseeing troubled youth in a work study program at the school.

Appellant's family was neither close nor loving. Although appellant's brother testified that appellant's upbringing had been fairly normal, another family member testified that appellant's father had been an alcoholic. Appellant's former sister-in-law testified that appellant's father had been a cruel man and a "demonic person" when he drank.

Family members and coworkers agreed that although appellant was likable, he was also reserved and uncomfortable around people. Although appellant quit school in the tenth grade, he received a high school equivalency diploma while in the service. Appellant did not attend college like his siblings. Instead, he successfully served eight years in the Air Force.

Dr. James Brown diagnosed appellant as suffering from "avoidant personality disorder" ("APD"), as well as a history of alcohol dependency. Dr. Brown stated that the symptoms of APD include pervasive social anxiety, a fear of rejection, and a hypersensitivity to the reactions of others. He testified that alcohol disinhibits feelings of anger, and renders a person like appellant more prone to violence.

Despite this disorder, Dr. Brown testified, appellant was able to form a close, loving relationship with Johnson, which was unique in his life. When this relationship was threatened, appellant reacted in an uncharacteristic manner. Dr. Brown believed that APD together with the alcoholism contributed to Johnson's death.

Sergeant Thomas Tomasheski of the Lorain County Sheriff's Department testified that appellant had no prior convictions or criminal record. Corrections Officer Robert Vansant testified that appellant had adjusted to incarceration and was not a discipline problem.

Finally, appellant gave a brief unsworn statement indicating his remorse.

In rebuttal, the state presented James Simko, who testified that he had seen his father assault his mother "quite a few times," and that this was what led to their divorce. After this testimony, in an...