State v. Yarbrough

• Decision Date: 01 December 2004
• Docket Number: No. 2000-2119.,2000-2119.
• Citation: 104 Ohio St.3d 1,817 NE 2d 845
• Parties: THE STATE OF OHIO, APPELLEE, v. YARBROUGH, APPELLANT.
• Court: Ohio Supreme Court

104 Ohio St.3d 1

2004-Ohio-6087

817 NE 2d 845

2004-Ohio-6087

THE STATE OF OHIO, APPELLEE, v. YARBROUGH, APPELLANT.

No. 2000-2119.

Supreme Court of Ohio.

Submitted April 13, 2004.

Decided December 1, 2004.

Christopher Becker, Jefferson County Assistant Prosecuting Attorney, for appellee.

David H. Bodiker, Ohio Public Defender, Joseph E. Wilhelm, Appellate Supervisor, Death Penalty Division, Kelly Culshaw, and Kyle E. Timken, Assistant Public Defenders, for appellant.

MOYER, C.J.

{¶ 1} This is a regrettable case in which the attorneys involved — the prosecutor, defense counsel, and even the trial judge — failed to exercise the level of assiduity we expect of participants in the criminal prosecution of a capital case. The General Assembly has not authorized an Ohio court of common pleas to exercise jurisdiction over the prosecution of a defendant for the crime of aggravated murder when, as here, the killing occurred in another state. As a result, it is our duty to reverse the convictions of aggravated murder and vacate the death sentences imposed on defendant-appellant, Terrell Yarbrough. We do, however, affirm multiple other convictions, including convictions for robbery, burglary, and kidnapping, and a total prison sentence of 59 years for those crimes.

{¶ 2} Moreover, we note that Yarbrough may yet be tried in an appropriate court for crimes relating to the deaths of the men he victimized. We are not aware of any precedent that would prevent Pennsylvania, whose law also provides for the death penalty, from trying appellant for the abhorrent murders of the two college students. See Heath v. Alabama (1985), 474 U.S. 82, 106 S.Ct. 433, 88 L.Ed.2d 387; 18 Pa.Consol.Stat.Ann. 112(1) and 1102.

{¶ 3} The genesis of the error that mandates this reversal appears to be the prosecutor's failure to distinguish between the venue statute and the jurisdiction statute in drafting the indictment. Incorrectly relying on the language of the venue statute, both the state and the defense proceeded — indeed, through the appeal to this court — under the assumption that Ohio courts had subject-matter jurisdiction to try Yarbrough for aggravated murder when the homicides did not occur in Ohio, but in Pennsylvania. The Ohio jurisdiction statute, however — because of the limited manner in which the General Assembly has drafted it — simply does not provide jurisdiction over homicides that occur outside the borders of Ohio. See R.C. 2901.11.

{¶ 4} Nothing in the record reflects that the defense counsel or the trial court ever recognized this error — despite the fact that the prosecutor was seeking the death penalty. It was not until our review of the record and our request for supplemental briefing that the issue of the jurisdiction of the trial court over the aggravated-murder charges was addressed. See State v. Lomax, 96 Ohio St.3d 318, 2002-Ohio-4453, 774 N.E.2d 249, ¶ 17 (subject-matter jurisdiction cannot be waived and may be raised by this court, sua sponte, on appeal). One would expect that those charged with the responsibility of participating in the prosecution of a defendant who is subject to the ultimate penalty would exercise more diligence. In failing to observe the General Assembly's statutory rules of jurisdiction, these attorneys disserved the citizens of Ohio and, in particular, the victims of these abhorrent crimes.

{¶ 5} Despite the time that has passed since the homicides were committed in Pennsylvania, despite overwhelming evidence that the defendant participated in the murders, and despite the anguish suffered by the family and friends of the victims, it is our responsibility as members of this court to preserve the integrity of the criminal-justice system in Ohio. To that end, our decision follows.

State's case

{¶ 6} Aaron Land, age 20, Brian Muha, age 18, and Andrew Doran were college students living in a street-level apartment at 165 McDowell Avenue in Steubenville. On May 30, 1999, Muha parked his mother's Chevrolet Blazer outside the apartment. During the early morning hours of May 31, 1999, Land and Doran were asleep in their bedrooms, and Muha was asleep on the living room couch.

{¶ 7} Around 5:00 a.m. on May 31, Yarbrough and Nathan Herring broke into the house and woke up Land and Muha by repeatedly hitting them with a pistol. Yarbrough and Herring then demanded the keys to the Blazer, and Muha gave them the keys.

{¶ 8} Doran, awakened by the noise of "a loud series of crashes," crawled out a window and reentered the house by a side door. Doran then saw a black male with a white handkerchief over his mouth and a hood pulled over his head, who looked at Doran and said, "Oh, f* * *, we have another one here." Doran then ran to a nearby residence and called the police.

{¶ 9} Yarbrough and Herring forced Land and Muha out of the house and into the back seat of the Blazer and drove towards Pittsburgh. During the trip, Yarbrough forced Land and Muha to engage in oral sex.

{¶ 10} In Washington County, Pennsylvania (near Pittsburgh), Yarbrough and Herring stopped the Blazer on the highway berm. Yarbrough forced the victims out of the car and into a forested area and separately shot them in the head with a .44-caliber handgun. The bodies appeared to have been placed under a bush in an area of thick vegetation. Yarbrough and Herring then took Muha's automatic-teller-machine ("ATM") card and some cash, walked back to the Blazer, and drove to Pittsburgh.

{¶ 11} Around 6:30 a.m. on May 31, Yarbrough and Herring stopped at an ATM in Pittsburgh and unsuccessfully attempted to withdraw cash using Muha's ATM card.

{¶ 12} During the early afternoon of May 31, Yarbrough and Herring went to the Squirrel Hill section of Pittsburgh to steal a second car. They saw Barbara Vey leave her house and drive away in a green BMW. Vey returned to her third-floor apartment in the house 10 to 15 minutes later.

{¶ 13} As Vey was leaving her apartment again, Yarbrough and Herring attacked her on a stairwell landing. Yarbrough demanded the keys to Vey's car, while Herring pointed a gun at Vey and screamed, "I'm going to kill you." Yarbrough then stood between Herring and Vey and said, "Don't shoot her." After Vey told Yarbrough and Herring that the car keys were in her apartment, they walked up to her apartment, and Vey gave the keys to Yarbrough. Before departing, Yarbrough told Vey, "I saw you earlier and I wanted you to be my girlfriend," and lifted Vey's chin and kissed her. After Yarbrough and Herring left, Vey called the police.

{¶ 14} Later that afternoon, Yarbrough drove the Blazer back to Steubenville, and Herring drove the BMW to Steubenville. En route, Yarbrough ran out of gas. Brian Porter, a passing motorist, stopped and gave him a ride to a nearby gas station. Yarbrough told Porter that he was from Pittsburgh, that he was traveling with another man who was driving a BMW, and that the other driver "just kept going" after Yarbrough ran out of gas.

{¶ 15} After returning to Steubenville, Yarbrough met with a friend, Brandon Young, and they drove around together in the Blazer. Young asked Yarbrough where he had gotten the Blazer, and Yarbrough said that he had "made a lick" (i.e., committed a robbery). Yarbrough told Young that he and Herring had broken into a house and had "started beating on `em with a gun." Yarbrough said he pushed the two victims into the Blazer and "took them up to the woods or mountains." Yarbrough said he "did two domies" (i.e., two head shots). Yarbrough also said he made the victims perform oral sex on each other before he killed them.

{¶ 16} Steubenville police officers dispatched to 165 McDowell found the house in disarray, with furniture knocked over and blood in the living room, on the bedding, and on the wall in Land's bedroom. There were no signs of forced entry. Steubenville police broadcast the description and license number of the missing Blazer to their colleagues and other law enforcement agencies.

{¶ 17} Around 6:00 p.m. on May 31, Steubenville police officers followed the Blazer into a parking lot. Yarbrough and Young fled the Blazer and ran down the street. After a short chase, Yarbrough was arrested. Around 8:00 p.m. on May 31, the police recovered Vey's BMW in Steubenville.

{¶ 18} Around 7:00 p.m. on May 31, Steubenville detectives interviewed Yarbrough and advised him of his Miranda rights, and he waived those rights. During this interview, Yarbrough lied about his identity and his whereabouts on May 31. He denied involvement in the theft of the Blazer or any knowledge about the missing students. Police also seized a religious necklace Yarbrough was wearing, which was later identified as Muha's.

{¶ 19} On the morning of June 2, 1999, the police apprehended and questioned Young and Herring. Later that afternoon, Yarbrough — who was still in custody — informed the police that he wished to speak to them again. Police detectives interviewed Yarbrough around 3:00 p.m. that day. Following advisement and waiver of his Miranda rights, Yarbrough admitted his involvement in the theft of the Blazer and the abduction of Land and Muha. However, Yarbrough claimed that Herring and Young had shot and killed the two victims.

{¶ 20} On June 3, police discovered evidence linking the Steubenville and Pittsburgh crimes. On that date, Pennsylvania State Police found an ATM receipt from Muha's account underneath the front seat of Vey's BMW. The receipt showed an attempted transaction from an ATM in Pittsburgh at 6:35 a.m. on May 31, 1999. Police later obtained a videotape showing Yarbrough attempting to use the ATM at around 6:35 a.m. on May 31.

{¶ 21} On the evening of June 3, 1999, Pittsburgh police officers interviewed Yarbrough in Steubenville. Following another advisement and waiver of his Miranda rights, Yarbrough again admitted his involvement in the theft of the Blazer and the abduction of Land and Muha. Yarbrough claimed that Young had forced Muha and Land to commit oral sex...