State v. Susan M. Daws

• Decision Date: 26 November 1997
• Docket Number: C.A. 16270,97-LW-4908
• Parties: STATE OF OHIO, Plaintiff-Appellee v. SUSAN M. DAWS, Defendant-Appellant C.A. Case No. 16270
• Court: Ohio Court of Appeals

STATE OF OHIO, Plaintiff-Appellee v. SUSAN M. DAWS, Defendant-Appellant

No. C.A. 16270

97-LW-4908 (2nd)

Court of Appeals of Ohio, Second District Montgomery

November 26, 1997

MATHIAS H. HECK, JR., Prosecuting Attorney, By: GEORGE A. KATCHMER Assistant Prosecuting Attorney, Appellate Division Montgomery County Courts Building, P.O. Box 972, 41 N. Perry Street, Suite 315, Dayton, Ohio 45422, Atty. Reg. #0005031 Attorney for Plaintiff-Appellee

DAVID H. FUCHSMAN, 120 West Second Street, Suite 2000, Hulman Building, Dayton, Ohio 45402, Atty. Reg. #0018407, Attorney for Defendant-Appellant

OPINION

BROGAN J.

In this case, Susan Daws appeals from her conviction on one count of voluntary manslaughter. Previously, in 1993, Daws was convicted of two counts of voluntary manslaughter for the deaths of Dwayne Daws and Karen Houseman. However, we reversed the conviction and remanded for a new trial due to errors of the trial court in limiting expert testimony on the Battered Woman Syndrome. See, State v. Daws (1994), 104 Ohio App.3d 448, discretionary appeal dismissed as improvidently allowed (1996), 74 Ohio St.3d 1284. After retrial, Daws was acquitted of charges arising from the death of Dwayne Daws, but was convicted on charges relating to Karen Houseman's death. On appeal, Daws raises the following three assignments of error:

I. The lower court erred in allowing certain hearsay testimony into evidence of alleged prior bad acts where its prejudicial effect far outweighed its relevance.

II. Appellant was denied the effective assistance of counsel in that he failed to object to the evidence discussed in the first assignment of error and he failed to file a motion to suppress statements attributed to Appellant immediately following the shooting.

III. The lower court erred in allowing a juror to be released for cause after the parties had exercised their peremptory challenges.

After considering Daws' assignments of error, we find them without merit and affirm the judgment of the trial court. Our reasons for doing so are set forth below.

I

The facts of this case were discussed at length in our previous opinion and need only be referred to briefly, for background purposes. The testimony at the second trial revealed that Susan and Dwayne Daws were married in 1982 and had a turbulent relationship. According to Susan, Dwayne had beaten her on numerous occasions throughout their relationship, and there was evidence admitted at trial to support this claim including photographs of black eyes and other injuries she received. Dwayne also had a drinking problem and had been placed on probation at his place of employment because of attendance problems caused by drinking. Generally, the incidents of abuse occurred when Dwayne had been drinking. Additionally, Susan had attempted suicide on two occasions, first in May, 1988, when Dwayne threatened to leave her, and again in December, 1991, when Dwayne purportedly said he would try to get custody of their two children based on her previous suicide attempt.

Dwayne and Susan lived apart from each other from December, 1989, through June, 1990. During this time, Susan filed for divorce but dismissed the action at Dwayne's request, allegedly because he threatened to kill himself. They lived together again until August, 1991, when Dwayne moved into a duplex owned by Karen and Marshall Houseman. Dwayne lived at the duplex until February, 1992, when he moved back into Susan's apartment in Franklin, Ohio. Ultimately, a divorce was granted, even though the parties were living together. Susan was given custody of the children in the divorce and Dwayne was ordered to pay support. However, despite the divorce, Susan and Dwayne continued to live together until Dwayne's death on Thursday, July 16, 1992.

On the Sunday before his death, Dwayne and Susan argued about a visit Dwayne had made that day to Karen Houseman, Dwayne's former landlady and a co-employee at Miami Valley Hospital. Dwayne and Karen had been having an affair for approximately two and a half years, including the time that Dwayne was living at the duplex owned by Karen and her husband, Marshall. Although Marshall was apparently ignorant of the affair, Susan had known about it since sometime in 1991. According to Susan, she was not allowed to talk to Marshall about Dwayne and Karen's relationship. Ironically, on the Friday before the shootings, the Housemans and the Daws went out to dinner with each other and to a nightclub. The two couples ended the evening by playing cards at the Houseman home.

As a result of their argument on Sunday, Susan and Dwayne discussed separating yet another time. Dwayne then went to work and did not come home for the next several days. He also failed to let Susan know where he was. Dwayne and Karen both worked nights at the hospital, but were off on Wednesday of that week. On Wednesday, they visited Dwayne's cousin in Kentucky and stayed overnight at a motel. In the meantime, Susan had packed Dwayne's clothing and had been trying to locate him. On Wednesday night, Susan finally called Karen's husband, Marshall, and told him about the affair.

On Thursday, Dwayne and Karen returned to Ohio and went to a condominium owned by Karen and Marshall on Orchard Run Road. According to Marshall, Karen sometimes stayed at this condominium and sometimes stayed at the Houseman home on Ellsworth Drive. Because Marshall was angry about the affair, he came to Orchard Run and beat up Dwayne. The accounts of exactly when Marshall was there and where the fight took place are conflicting. In any event, Susan claimed to have received a phone call from Dwayne after the fight. In the call, Dwayne told Susan that Marshall had beaten him up and he asked Susan to bring his gun to the Orchard Run condominium. Susan's testimony was that she took the gun over because she was afraid Dwayne would come to her apartment and harm her or her children if she did not do as he asked.

After arriving at the Orchard Run condominium, Susan went in. The only living witness to what occurred inside is Susan. Her account was that Dwayne and Karen were upset because of the fight and because Marshall had told Karen she was going to lose her children. When Susan opened her purse to get a cigarette, Dwayne saw the gun and tried to get it. In the ensuing struggle, Susan shot Dwayne three times and also fired in Karen's direction. While Susan did not deny shooting the gun, she contended that she shot in self-defense. Both Dwayne and Karen died as a result of their injuries.

As we noted above, the first assignment of error focuses on the allegedly prejudicial admission of testimony about prior "bad acts" committed by Susan. Testimony about these acts was introduced in the State's case-in-chief. The acts relate to an incident occurring in September, 1991, in which Susan purportedly poured bleach in Karen Houseman's house and also damaged Dwayne Daws' car, in apparent retaliation for finding Dwayne and Karen in bed together at Dwayne's duplex. Objection to admission of this evidence is based on two grounds. First, the defense argues that Marshall Houseman was improperly allowed to repeat Karen's hearsay statement about the bleach incident. Second, the defense claims that evidence of Susan's acts, occurring nearly a year before the shooting, was both irrelevant and prejudicial. In response, the State contends the evidence was relevant to show Susan's motive in taking the gun with her to the condominium that night, and was further relevant to explain the history of Susan and Dwayne's relationship. Specifically, while the defense claimed Susan suffered from the Battered Woman Syndrome and was acting in self-defense, the prosecution portrayed her as a jealous, aggressive, and vindictive woman who was angry over her ex-husband's decision to leave her for another woman. We agree with the State that these acts were relevant to contest the defense theory, but they were proper in rebuttal, not as part of the State's case-in-chief. See, State v. Banks (1986), 31 Ohio App.3d 57 (allowing testimony of prior violent acts to challenge defendant's testimony and show defendant was capable of violent acts).

Under Ohio R. Evid. 404, character evidence is not admissible to prove that the defendant acted in accordance therewith on a particular occasion. However, certain limited exceptions exist, including the following, as set forth in 404 (B):

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Furthermore, under R.C. 2945.59, a defendant's prior acts may be proven to show motive or intent or the absence of mistake or accident on the defendant's part, even if the evidence tends to show that the defendant has committed another crime.

In this case, Susan Daws was originally charged with murder, but was retried only on charges of voluntary manslaughter, which is defined by R.C. 2903.03 as follows:

(A) No person, while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force, shall knowingly cause the death of another.

Typically voluntary manslaughter is a lesser included offense to murder or aggravated murder, and the defendant has the "burden of persuading the fact finder, by a preponderance of the evidence, that he or she acted under the influence of sudden passion or in a sudden fit of rage, either of which was brought on by serious provocation...