State v. Yarbrough, 1999-0958.

Citation95 Ohio St.3d 227,767 NE 2d 216
Decision Date15 May 2002
Docket NumberNo. 1999-0958.,1999-0958.
PartiesTHE STATE OF OHIO, APPELLEE, v. YARBROUGH, APPELLANT.
CourtUnited States State Supreme Court of Ohio

James F. Stevenson, Shelby County Prosecuting Attorney, and Michael F. Boller, Assistant Prosecuting Attorney, for appellee.

David H. Bodiker, Ohio Public Defender, Stephen A. Ferrell and Tracey A. Leonard, Assistant Public Defenders, for appellant.

ALICE ROBIE RESNICK, J.

{¶ 1} Appellant, Kevin Yarbrough, was convicted of the aggravated murder for hire of Wilma Arnett, an informant for the Shelby County Sheriff's Department and state's witness in the prosecution of Calvin Davis and his drug-dealing ring. The trial court sentenced appellant to death. We affirm.

{¶ 2} At the time of Wilma Arnett's murder, Calvin Davis was the central figure of a Shelby County narcotics ring. He had formerly headed a door-to-door "gypsy" painting crew in Georgia; appellant had worked on his painting crew during 1991 or 1992.

{¶ 3} Wilma Arnett was the sister of Calvin Davis's wife, Jewel. Arnett lived in Sidney, the Shelby County seat. For a number of months, Arnett had been a police informant in local drug cases. From September 1993 to January 1994, Arnett made controlled drug purchases under the supervision of detectives while wearing a hidden recorder and transmitter. {¶ 4} In February 1994, a grand jury indicted Calvin Davis and fourteen others for aggravated drug trafficking. Calvin Davis's codefendants included Tyrone McGhee and Jermaine Jelks, two members of Calvin Davis's drug ring. After Calvin Davis received discovery from the state, he told his wife that Arnett "had to go."

{¶ 5} Appellant's girlfriend, Elizabeth Johnson, had a conversation with Calvin Davis in late 1993 or early 1994. An enraged Calvin Davis told her that Arnett had "set him up" and that he would "go to prison for 15 years" because of Arnett's betrayal. Arnett had left a message on Calvin Davis's answering machine threatening to inform the police about his drug dealing unless Calvin Davis paid her off, and Calvin Davis played the message for Johnson. Calvin Davis told Johnson that "before he gave [Arnett] any more fuckin' money, he'd have her killed or kill her himself."

{¶ 6} In May 1994, Calvin Davis summoned appellant to Shelby County. On May 2, Calvin Davis paid for a bus ticket in the name of Elizabeth Johnson to take appellant from Augusta, Georgia, to Sidney, Ohio. Davis arranged for Johnson to pick it up at the Augusta bus station. Johnson picked up the ticket, gave it to appellant, and put him on the bus. Although the ticket entitled appellant to ride all the way to Sidney, he got off the bus in Cincinnati. Calvin Davis, along with Davis's wife and a friend, picked him up there and drove him to Sidney. Calvin Davis later introduced appellant to Tyrone McGhee as "my boy." While in Sidney, appellant supported himself by dealing drugs in association with Calvin Davis.

{¶ 7} State's Exhibit 26, a photograph of appellant, shows a large cyst below and to the right of appellant's right eye. (Because of his distinctive appearance, appellant was nicknamed "Knothead.") Appellant no longer had the cyst by the time that he was tried, but his girlfriend testified that Exhibit 26 accurately depicted appellant's appearance—including the cyst—in May 1994.

{¶ 8} In May 1994, Calvin Davis, McGhee, and Jelks were discussing their cases with appellant in Calvin Davis's van. Calvin Davis suggested that he and McGhee "should * * * pay Kevin Yarbrough to do a hit on Wilma * * * so our drug cases would get dropped." Calvin Davis and McGhee were each to pay appellant $10,000. They drove to McGhee's house. McGhee got out of the van and came back with a duffel bag containing $10,000 in cash. He gave the bag to appellant, who counted the money in the van.

{¶ 9} Annette Simmons was Calvin Davis's neighbor; originally from Georgia, she had known Calvin Davis since he was sixteen. One evening in May, while appellant was staying with the Davises, Simmons was visiting Jewel Davis. In Simmons's presence, appellant asked Calvin Davis, "[D]id you get the picture?" Calvin Davis asked his wife, "[D]o you have the picture[?]" A photograph of Jewel Davis and Wilma Arnett was removed from an album and torn or cut in half. Calvin Davis showed appellant the half depicting Wilma; then Calvin Davis pocketed it.

{¶ 10} On May 9, 1994, the day before Wilma Arnett's body was found, Jewel Davis saw her husband hand his .38-caliber handgun to appellant. That same day, Vicki Shawler saw "a tall black male" displaying a handgun during a party. The man was in the company of Calvin Davis, and he had a "mole" or "mark" on his face, located where appellant's cyst had been.

{¶ 11} At the United gas station in Sidney, Tanya Counts was working the last shift on May 9 as a cashier. During Counts's shift, which ended at 10 or 11:00 p.m. that night, Wilma Arnett came to the station three times. The first two times, she was by herself.

{¶ 12} Near the end of her shift, Counts saw Arnett for the third time. This time, Arnett was accompanied by a tall black man with a "bump" on his face. Arnett drove in and pumped some gasoline, and her companion came inside and paid for it. He asked Counts if the station sold beer. Counts said no, and the man left.

{¶ 13} Counts could not positively identify appellant as the man with Arnett. However, Counts testified that the "bump" on the man's face was in the same location as appellant's cyst shown in State's Exhibit 26.

{¶ 14} Just before midnight on May 9, a motorist saw Arnett's car parked at the edge of a field on Dingman-Slagle Road, outside Sidney. He saw at least one person in the car.

{¶ 15} Around 12:30 or 1:00 a.m. on May 10, appellant came into Walleyes Bar in Sidney to speak to Calvin Davis. McGhee, who was watching a pool game and standing near Calvin Davis, heard the conversation. Appellant approached Calvin Davis and reported, "The snitch is no more." He commented that "the bitch was hard to die." He then told Calvin Davis that he "beat her down," that he "[s]hot her once and * * * had to shoot her again because she wasn't dead the first time," and that he "threw the gun up there in the woods" near the residence of James Bussey, Calvin Davis's nephew. Appellant also said something about "the window being broke out."

{¶ 16} On the morning of May 10, Arnett's husband looked for her. He did not find her, but he did find her car parked in town. The windshield had been broken, scattering glass fragments on the seat and floor.

{¶ 17} That same morning, another motorist reported a body lying in a field on Dingman-Slagle Road, where Arnett's car had been seen at midnight. The body was later identified as Wilma Arnett. Fragments of tinted automotive window glass were found near the body. {¶ 18} Arnett was shot three times in the head and three times in the body. A .38-caliber slug was recovered from Arnett's body. Semen was found on a vaginal swab taken during the autopsy. DNA analysis showed that appellant was the source of the semen.

{¶ 19} On the morning of May 10, Calvin Davis told his wife that he wanted appellant out of his house. Calvin Davis then went to the nearby apartment of Paul Smith, another member of his drug ring, and ordered him to "get [appellant] out of there." Calvin Davis told Smith that appellant had stolen money and crack from him.

{¶ 20} Appellant got into Smith's car with two bags, one of which was a duffel bag. Smith headed for Sidney, but appellant told him to drive to Lima instead. When they arrived, the bus station was closed, so Smith checked appellant into a motel under Smith's name. Appellant told Smith: "[T]ell Calvin where I am. Don't tell nobody else." This surprised Smith, since Calvin Davis "was supposed to be mad at" appellant.

{¶ 21} Three or four days after the murder, Calvin Davis told his wife that he had paid appellant $5,000 to kill Arnett and he "wasn't gonna pay any more."

{¶ 22} As a result of Arnett's murder, the aggravated drug trafficking cases in which she was to testify were dismissed.

{¶ 23} In September 1994, Detective Joanie Henry of the Shelby County Sheriff's Department interviewed appellant in South Carolina. At first, appellant told Henry that "he had heard of the murder but did not know Wilma." After seeing Wilma's picture, he admitted that he had seen her at Walleyes Bar "but denied that he'd ever had any contact with her." Later, appellant admitted to Henry that he and Arnett "had had contact with each other outside Walleyes Bar within a few days [of] when he first arrived" and that he had sexual relations with Arnett. He denied being with her on the night of May 9.

{¶ 24} In 1995, appellant was being held in the Shelby County Jail on other charges. One day in late October or early November, appellant returned from a court appearance "excited" and "upset." He told Vance Short, a fellow inmate, that he was "afraid that he was the last person that [Arnett] was seen with." He also said, "[W]ell, I made sure that the bitch got what she deserved."

{¶ 25} In December 1995, a local resident found a .38-caliber revolver in a wooded area not far from the apartment complex where Calvin Davis's nephew Bussey lived. Witnesses identified that gun as belonging to Calvin Davis. It was impossible to determine conclusively that the .38-caliber slug removed from Arnett's body was fired from that gun. However, the gun could not be excluded as the murder weapon. {¶ 26} Appellant was ultimately indicted for aggravated murder with prior calculation and design in violation of R.C. 2903.01(A) with two death specifications: murder for hire pursuant to R.C. 2929.04(A)(2) and murder of a witness pursuant to R.C. 2929.04(A)(8). The indictment also charged conspiracy to commit aggravated murder, R.C. 2923.01(A)(2).

{¶ 27} Appellant was convicted of all charges and specifications. After a penalty hearing, the trial judge...

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