[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Sowell, Slip Opinion No. 2016-Ohio-8025.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.


                          SLIP OPINION NO. 2016-OHIO-8025
             THE STATE OF OHIO, APPELLEE, v. SOWELL, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
       may be cited as State v. Sowell, Slip Opinion No. 2016-Ohio-8025.]
Criminal Law—Aggravated murder—Right to public trial—Death penalty
        affirmed.
    (No. 2011-1921—Submitted April 5, 2016—Decided December 8, 2016.)
          APPEAL from the Court of Common Pleas of Cuyahoga County,
                                    No. CR-09-530885.
                                      ______________
        O’DONNELL, J.
        {¶ 1} Anthony Sowell appeals from the judgment of the Cuyahoga County
Common Pleas Court in connection with 11 capital convictions and sentences of
death arising out of the serial killing of 11 women in Cleveland, Ohio. Sometime
before October 28, 2009, Sowell kidnapped and murdered these 11 women and
buried or concealed them at his home located at 12205 Imperial Avenue on the east
side of Cleveland. Members of the Cleveland Police Department investigating a
rape complaint against Sowell discovered the bodies of Diane Turner and Telacia
                             SUPREME COURT OF OHIO




Fortson in Sowell’s house. Police later found the bodies of eight more women and
the skull of another woman in or around the home, and they obtained additional
evidence demonstrating that Sowell had attempted to kill three other women.
       {¶ 2} A grand jury returned an 85-count indictment against Sowell, and
following trial in common pleas court, a jury convicted him of 11 counts of
aggravated    murder,    each     containing   death-penalty   specifications,   and
recommended death sentences for each of the 11 aggravated murders. The trial
court accepted those recommendations and sentenced Sowell to 11 death sentences
on those counts.
       {¶ 3} After review, we affirm Sowell’s convictions and death sentences.
                          Facts and Procedural History
       {¶ 4} On October 28, 2009, a member of the Cleveland Police Department,
investigating a rape complaint filed by Latundra Billups, obtained warrants to arrest
Sowell and to search his home at 12205 Imperial Avenue in Cleveland. When
officers executed the search warrant the next evening, Sowell was not at home. In
a room on the third floor of the house, however, police found two decomposed
female corpses lying on the floor, which DNA analysis later confirmed were the
bodies of Diane Turner and Telacia Fortson.
       {¶ 5} Police obtained another warrant the next day and resumed searching
Sowell’s house, this time accompanied by personnel from the county coroner’s
office and a cadaver dog. They located a body beneath the basement staircase
covered by a large mound of dirt and two more on the third floor, one inside a black
plastic bag and one in a crawlspace concealed beneath more dirt. DNA analysis
identified the body in the basement as Janice Webb, the body in the bag as Nancy
Cobbs, and the body in the crawlspace as Tishana Culver.
       {¶ 6} In the backyard, the cadaver dog alerted to a spot near the back porch,
where police located another body buried in a shallow grave that DNA analysis
identified as Tonia Carmichael.




                                          2
                                January Term, 2016




       {¶ 7} The next day, on October 31, Sowell was seen on Mount Auburn
Avenue by a member of the public who had recognized him from news broadcasts.
Police were alerted and Sowell was arrested.
       {¶ 8} On November 3, police obtained another search warrant for Sowell’s
residence and this time arranged for a backhoe to be brought to the property. They
uncovered four more corpses and from DNA analysis eventually identified them as
the bodies of Michelle Mason, Kim Smith, Amelda Hunter, and Crystal Dozier. In
addition, a human skull, which DNA analysis eventually identified as belonging to
Leshanda Long, was found in a black plastic bag inside a red bucket in the
basement. No other parts of her body were located.
       {¶ 9} Autopsy results showed that Culver had suffered a fractured hyoid
bone in her neck, suggesting manual strangulation. Seven bodies—Carmichael,
Cobbs, Dozier, Fortson, Hunter, Mason, and Webb—had ligatures around their
necks, and the coroners concluded that their deaths had been caused by ligature
strangulation. The coroners further concluded that Long, Smith, and Turner were
killed by “homicidal violence” of “undetermined” type. Other evidence showed
that six bodies—Carmichael, Cobbs, Culver, Dozier, Smith, and Webb—had
bindings, or the remains of bindings, around their wrists and/or ankles.
       {¶ 10} Following the investigation, a grand jury returned an 85-count
indictment against Sowell. Counts 1 through 66 dealt with the 11 murder victims.
Regarding each victim, the grand jury indicted Sowell on two counts of aggravated
murder: one for prior calculation and design, R.C. 2903.01(A), and one for felony
murder, R.C. 2903.01(B), predicated on kidnapping.
       {¶ 11} Each aggravated-murder count had 15 death-penalty specifications.
Two felony-murder specifications pursuant to R.C. 2929.04(A)(7) were attached to
each count—the first was predicated on kidnapping to terrorize or inflict serious
physical harm on the victim and the second was predicated on kidnapping to engage
in sexual activity with the victim against the victim’s will.




                                          3
                             SUPREME COURT OF OHIO




       {¶ 12} In addition, each aggravated-murder count had 13 course-of-conduct
specifications pursuant to R.C. 2929.04(A)(5), alleging that the murder was part of
a course of conduct involving the purposeful killing of or attempt to kill two or
more victims. Each course-of-conduct specification cited one of the other murders
or attempted murders in this case as part of the course of conduct engaged in by
Sowell.
       {¶ 13} Each aggravated-murder count and most of the noncapital counts
also included a sexual-motivation specification pursuant to R.C. 2941.147, a
sexually violent predator specification pursuant to R.C. 2941.148, a repeat-violent-
offender specification pursuant to R.C. 2941.149, and a prior-conviction
specification reflecting a prior conviction of attempted rape.
       {¶ 14} With respect to each murder victim, the indictment charged two
counts of kidnapping: one under R.C. 2905.01(A)(3) (having a purpose to terrorize
or to inflict serious physical harm) and another under R.C. 2905.01(A)(4) (having
a purpose to engage in sexual activity with the victim against the victim’s will).
Finally, the indictment charged one count of abuse of a corpse and one count of
tampering with evidence with respect to each aggravated murder victim.
       {¶ 15} Counts 67 to 85 charged Sowell with crimes against Latundra
Billups, Shawn Morris, and Gladys Wade, each of whom survived their encounters
with Sowell. As to these victims, whom the state identified as Jane Does in the
original indictment, Sowell was charged with two counts of kidnapping, pursuant
to R.C. 2905.01(A)(3) and (A)(4), and one count of attempted murder, pursuant to
R.C. 2923.02 and 2903.02(A). Sowell was also charged with two counts of rape
committed against Billups and Morris and one count of attempted rape committed
against Wade. Additionally, he was charged with two counts of felonious assault
pertaining to Billups and one count each with regard to Morris and Wade. Finally,
he was indicted for one count of the aggravated robbery of Wade.




                                          4
                                January Term, 2016




       {¶ 16} After the state’s presentation of evidence during the guilt phase of
the trial, the defense moved for acquittal. The trial court granted the motion as to
Counts 38, 39, and 40 (felony-murder and kidnapping of Long) and Specifications
1, 2, and 16 (felony murder and sexual-motivation specifications) to Count 37
(aggravated murder of Long with prior calculation and design).
       {¶ 17} The defense did not call any witnesses in its case-in-chief, but it
submitted a number of exhibits into evidence before it rested. The jury returned
verdicts finding Sowell not guilty of Count 85 (aggravated robbery of Wade) but
guilty of all other counts and specifications.
       {¶ 18} Prior to the penalty phase of trial, the trial court merged the
aggravated-murder counts for sentencing purposes. The state elected to proceed
under R.C. 2903.01(A), and thus, the jury considered 11 counts of aggravated
murder. Pursuant to the state’s election, the counts based on R.C. 2903.01(B) were
not submitted to the jury during the penalty phase of the trial.
       {¶ 19} At the conclusion of its penalty-phase deliberations, the jury
recommended death sentences for each of the 11 aggravated murders. The trial
court accepted the recommendations and sentenced Sowell to death on each of the
11 counts.
       {¶ 20} Sowell appealed as of right to this court pursuant to Article IV,
Section 2(B)(2)(c) of the Ohio Constitution.
                               Courtroom Closures
       {¶ 21} The trial court conducted an in camera session on July 21, 2010,
involving a hearing on Sowell’s motion to suppress statements he made to police,
and subsequent in camera sessions from June 6 through 21, 2011, relating to the
individual voir dire of prospective jurors on attitudes toward the death penalty,
pretrial publicity, and requests to be excused for hardship reasons.
       {¶ 22} Although Sowell did not present a proposition of law challenging the
courtroom closures and thus failed to preserve the issue for appeal, see generally




                                          5
                             SUPREME COURT OF OHIO




State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, on
September 3, 2014, we ordered additional briefing on whether these closures denied
Sowell his Sixth Amendment right to a public trial. 140 Ohio St.3d 1411, 2014-
Ohio-3785, 15 N.E.3d 881.
                             The Suppression Hearing
       {¶ 23} Sowell moved to suppress statements made during a series of police
interrogations on the basis that he had not been properly advised of his Miranda
rights and that he did not knowingly, intelligently, and voluntarily waive them
because he suffered from a psychotic disorder or severe mental illness.
       {¶ 24} The trial court determined that due to the sensitive nature of the
evidence regarding Sowell’s mental health issues and the potential prejudice to the
jury pool, it would conduct the suppression hearing in camera. Defense counsel
objected for the record.
       {¶ 25} At the hearing, the state presented testimony from police officers and
video recordings of Sowell’s interrogation. In those recordings, Sowell never
admitted to murdering the 11 victims and denied having any memory of killing
them or knowing that their bodies were buried and hidden on his property. He
explained that he had encountered various women, mostly from the Mount Pleasant
area of East Cleveland where he lived, and from time to time he would hear a
“voice” saying something about “bad people”; then he would “go blank” or “black
out.” Sowell described dreams in which he “hurt somebody” by choking a woman
with his hands. Sowell stated that after these dreams, he would wake up and would
find that the woman had left without saying goodbye. When he woke from his
dreams, his body felt “tired” as if he had been working.
       {¶ 26} He said that he had dreamed about the “bad ones” who were doing
drugs or soliciting on the street when they had children or families, and he described
himself as “the punisher.” These women needed to be punished because they were
“cons” who tried to “hustle” him out of money and drugs. Sowell explained that




                                          6
                                January Term, 2016




the voice in his head told him what he was “supposed to do. It’s like I was supposed
to rape these girls.” Sowell admitted that all the women found in the house were
bad, and he was able to give descriptions of some of the victims.
       {¶ 27} The trial court denied the motion to suppress these statements,
finding that Sowell knowingly, intelligently, and voluntarily had waived his
Miranda rights during the police interviews and that his statements were neither
coerced nor the result of a psychosis that interfered with his ability to make free
and rational choices.
       {¶ 28} The Sixth Amendment right to a public trial is a protection for the
accused and extends to a hearing on a motion to suppress evidence. Waller v.
Georgia, 467 U.S. 39, 46-47, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). However, “the
right to an open trial may give way in certain cases to other rights or interests, such
as the defendant’s right to a fair trial or the government’s interest in inhibiting
disclosure of sensitive information.” Id. at 45. Accordingly, “the party seeking to
close the [suppression] hearing must advance an overriding interest that is likely to
be prejudiced, the closure must be no broader than necessary to protect that interest,
the trial court must consider reasonable alternatives to closing the proceeding, and
it must make findings adequate to support the closure.” Id. at 48, citing Press-
Enterprise Co. v. Superior Court of California, Riverside Cty., 464 U.S. 501, 104
S.Ct. 819, 78 L.Ed.2d 629 (1984).
       {¶ 29} The Supreme Court in Waller recognized that the accused “should
not be required to prove specific prejudice in order to obtain relief for a violation
of the public-trial guarantee” during a suppression hearing, id. at 49, noting that the
benefits of a public trial are “intangible, difficult to prove, or a matter of chance,”
id. at fn. 9. Yet it held that the remedy for the violation in that case was not a new
trial but a new suppression hearing, because “[i]f, after a new suppression hearing,
essentially the same evidence is suppressed, a new trial presumably would be a
windfall for the defendant, and not in the public interest.” Id. at 50. The court




                                          7
                              SUPREME COURT OF OHIO




concluded that “[a] new trial need be held only if a new, public suppression hearing
results in the suppression of material evidence not suppressed at the first trial, or in
some other material change in the positions of the parties.” Id.
        {¶ 30} The trial court in this case identified an overriding interest for
conducting the hearing in camera, stating on the record that it had closed the
courtroom “due to the sensitive nature of the evidence and potential for suppression
of evidence that, if released to the public at this time, would potentially prejudice
any jury pool.” Thus, the trial court undoubtedly recognized that given the intense
media interest generated by Sowell’s trial involving the serial killing of 11 women
in Cleveland, closing the suppression hearing was necessary to guarantee Sowell a
fair trial and to avoid tainting the jury pool with statements that he would encounter
various “bad” women in his neighborhood, hear a voice telling him to rape them,
black out, and then dream of strangling them before waking to find them gone.
        {¶ 31} As the Supreme Court explained in Sheppard v. Maxwell, 384 U.S.
333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966),


        Due process requires that the accused receive a trial by an impartial
        jury free from outside influences.       Given the pervasiveness of
        modern communications and the difficulty of effacing prejudicial
        publicity from the minds of the jurors, the trial courts must take
        strong measures to ensure that the balance is never weighed against
        the accused. * * * If publicity during the proceedings threatens the
        fairness of the trial, a new trial should be ordered. But we must
        remember that reversals are but palliatives; the cure lies in those
        remedial measures that will prevent the prejudice at its inception.
        The courts must take such steps by rule and regulation that will
        protect their processes from prejudicial outside interferences.




                                           8
                                  January Term, 2016




Id. at 362-363. The court also noted that a trial court has a duty to protect the
accused from “inherently prejudicial publicity which saturate[s] the community.”
Id. at 363.
        {¶ 32} Although the trial court recognized the high degree of public interest
in the trial as well as the potential for publicity to prejudice Sowell’s right to a fair
public trial, it did not make an express finding that the limited closure of the
proceeding was in fact no broader than necessary to protect that interest.
Nonetheless, it is apparent from the record that the trial judge concluded that the
closure of the suppression hearing was no broader than necessary to protect
Sowell’s right to a fair proceeding and to avoid prejudice to the jury pool. This
case is factually distinguishable from Waller, where the trial court closed a seven-
day suppression hearing to avoid revealing the contents of a two-and-one-half-hour
wiretap audio recording, so that “the closure was far more extensive than
necessary.” 467 U.S. at 49, 104 S.Ct. 2210, 81 L.Ed.2d 31. Here, closure was
limited to considering the suppression of Sowell’s statements, and the court
specifically stated that it would reopen the courtroom for argument on other
matters. Thus, the trial court obviously concluded that closure was necessary to
protect Sowell’s right to a fair trial, but it failed to state that finding on the record.
From our review of the record, we are convinced that closure was no broader than
necessary to protect that interest.
        {¶ 33} Nor did the trial court state on the record that it had considered
reasonable alternatives to conducting the suppression hearing in camera, but it is
obvious that the court had no reasonable alternative other than to close that limited
proceeding to the public in order to protect the right of the accused to a fair public
trial. The trial court understood that if Sowell’s statements were publicized but
subsequently suppressed, then his right to a fair trial by an impartial jury would be
compromised. Other than closing the hearing, there was no way for the court to




                                            9
                               SUPREME COURT OF OHIO




examine the admissibility of Sowell’s statements without also possibly exposing
those statements and prejudicing potential jurors.
        {¶ 34} Because the trial court identified an overriding interest supporting
closure of the suppression hearing and because the record demonstrates that closure
was narrowly drawn and limited in scope and was the only reasonable option to
protect that interest, the trial court did not abuse its discretion in ordering the limited
closure of the courtroom.
        {¶ 35} Waller is factually distinguishable from this case, but even if Waller
requires this court to presume prejudice from the closure of a suppression hearing,
the remedy the Supreme Court adopted there is not applicable here. In Waller, the
essence of the state’s case against the accused consisted of wiretaps and other
evidence that, if suppressed, could have precluded the state from obtaining a
conviction. Explaining that “the remedy should be appropriate to the violation,”
the Supreme Court ordered a public suppression hearing and held that a new trial
would be required only if the new hearing resulted in a “material change in the
positions of the parties.” (Emphasis added.) Waller at 50.
        {¶ 36} That is not the case in this instance, however, because even if we
presume prejudice from the closure of the courtroom, a new suppression hearing
would not result in a material change in the positions of the parties. Based on the
record, any reasonable jurist would find that Sowell knowingly, intelligently, and
voluntarily waived his Miranda rights. Even assuming that Sowell’s statements to
police would have been suppressed at a public hearing, the omission of those
statements from the evidence presented at trial would not have affected the
outcome. As we explained in State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853,
854 N.E.2d 150, ¶ 87, “[if] a new hearing could not materially change the position
of the parties, there is no need for either a new hearing or a new trial.”




                                            10
                                January Term, 2016




       {¶ 37} Although Sowell’s statements to police are incriminating, the state
presented overwhelming independent evidence of guilt supporting Sowell’s
convictions and sentence.
       {¶ 38} Police located ten bodies and one human skull on Sowell’s property;
eight of the victims appeared to have been strangled to death, and many of the
bodies were found nude or nude from the waist down and/or had bindings, or the
remains of bindings, around their wrists and/or ankles. The condition of the bodies
establishes Sowell’s course of conduct in kidnapping women, sexually assaulting
them, and strangling them to death. And significantly, five of Sowell’s victims
survived and testified at trial, providing proof of his course of conduct.
       {¶ 39} One, Vanessa Gay, testified that in September 2008, Sowell brought
her to the third floor of his home to use drugs but then punched her in the face,
ordered her to take off her clothes, and repeatedly raped her over several hours.
When Sowell permitted her to go to the bathroom, she saw something in a room off
the hallway that looked like a headless body, propped up in a seated position and
“taped up.” When she returned to the bedroom, Sowell said repeatedly, “You’re
going to tell, I know you’re going to tell,” but she persuaded him to let her go.
       {¶ 40} Another victim, Gladys Wade, testified that in December 2008, she
had declined Sowell’s invitation to drink with him and was walking down Imperial
Avenue when he grabbed her clothing, dragged her toward his house, and choked
her until she lost consciousness. She awoke in Sowell’s house, and he ordered her
to remove her clothes and punched her in the face. When she clawed his eyes and
tried to escape, he began strangling her, saying, “you can scream all you want,
you’re going to die.” She fought Sowell off, made it out of the house, and flagged
down a police cruiser. Although Sowell was arrested, he was later released because
the arresting officer mislabeled the offense on the incident report.
       {¶ 41} A third female, Tanja Doss, testified that she had previously dated
Sowell and had accepted an invitation to “get high” at his house in April 2009.




                                         11
                              SUPREME COURT OF OHIO




After they watched a basketball game and smoked crack, Sowell seized her by the
throat and began choking her, saying, “you can be the next crack head bitch dead
up in the street and nobody give a fuck about you.” She complied with his order to
remove her clothes, and she lay down on the bed, “curled up in * * * a fetal
position,” and cried herself to sleep. The next morning, Sowell acted as if nothing
had happened. Doss made up a story about going to see her granddaughter in the
hospital, and he let her leave.
        {¶ 42} Another victim, Latundra Billups, testified that she had previously
smoked crack on the third floor of Sowell’s house and that sometime in September
2009, she accompanied him to drink beer with him at his home. After they smoked
crack, Sowell took her to a room on the second floor that was empty except for a
blanket and a piece of an extension cord. He hit her hard in the face, ordered her
to remove her clothes, and raped her. As he was raping her, he placed the extension
cord around her neck and choked her until she blacked out. When she awoke hours
later, Sowell appeared “startled” and “shocked.” He told her that he was going to
kill her and himself “because he knew he was going to jail,” but she persuaded him
to release her.
        {¶ 43} A fifth victim, Shawn Morris, testified that she met Sowell one
morning in October 2009 and went to his home to drink and smoke crack. She left
after five hours, but she came back to retrieve her identification card after she
realized that she had left it in his house. After he opened the door and she came
inside, Sowell placed her in a chokehold, forced her upstairs, ordered her to remove
her clothes, and violently raped her. When he left the room to close windows to
prevent her screaming from being heard, she escaped through a third-floor window
and hung naked from a ledge. Sowell tried to pull her back in, but when he could
not, he “shoved [her] down as hard as he could.” She fell to the ground, was
seriously injured, and lost consciousness. Bystanders testified that Sowell, who
was also naked, tried to bring her back inside the house while she was unconscious




                                        12
                                January Term, 2016




and bleeding, but a crowd had gathered and tried to prevent him from moving her
due to the extent of her injuries. Although Sowell later did move her to the door of
his house, emergency personnel arrived and transported her to the hospital.
       {¶ 44} These five witnesses not only established a behavioral fingerprint
identifying Sowell as the person who murdered the 11 women found in his house
and buried in his yard, but also their testimony showed that he engaged in a course
of conduct in which he lured women to his home with the promise of drugs and
then kidnapped, sexually assaulted, and strangled them to death. See State v. Lowe,
69 Ohio St.3d 527, 531, 634 N.E.2d 616 (1994). If there were any doubt that it was
Sowell who murdered these women, it was eviscerated by the testimony of Wade,
Billups, and Morris that he also tried to kill them.
       {¶ 45} In his opening brief filed in this court, Sowell did not challenge the
trial court’s ruling at the suppression hearing, nor did he challenge the sufficiency
of the evidence supporting the convictions. Rather, his attorneys recounted the
history of his case and wrote: “The jury, any jury, would find Sowell guilty of the
22 counts of aggravated murder. The jury, any jury, would find Sowell guilty of at
least one Course of Conduct specification for each aggravated murder.” Sowell
argued that based on the “overwhelming evidence” of guilt, the only reasonable
strategy at trial was to concede guilt rather than pursue a defense that there was
reasonable doubt as to who killed the victims. These admissions fortify the
conclusion that the trial court’s error in closing the suppression hearing prior to
admitting Sowell’s statements to police was not material.
       {¶ 46} Accordingly, overwhelming independent evidence of guilt proves
beyond a reasonable doubt that Sowell committed the aggravated murders of 11
women and the felony-murder and course-of-conduct death specifications
associated with those counts, including the pattern of behavior engaged in by
Sowell, his course of conduct, his identification by those who escaped together with
the site of the killings, and the elaborate efforts to conceal the bodies. And with




                                          13
                             SUPREME COURT OF OHIO




respect to the 11 death sentences imposed in this case, the evidence establishes that
the aggravating circumstances overwhelmingly outweigh the mitigating factors.
       {¶ 47} Thus, even if Sowell’s statements to police were suppressed, he
would have been convicted and sentenced to death. Because the admission of his
statements did not affect the outcome of the trial and because a new suppression
hearing would not result in a material change in the positions of the parties, ordering
a new suppression hearing would be a vain act, “an empty formality,” and just the
type of “windfall” for the defendant that Waller sought to avoid. Bethel, 110 Ohio
St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150, at ¶ 87.
                                Individual Voir Dire
       {¶ 48} The court also closed the courtroom during the individual voir dire
of prospective jurors. Not only did the defense not object to the closure, but also it
filed a “Request for Individually Sequestered Voir Dire” specifically asking that
individual voir dire take place “outside the presence and hearing of other members
of the venire” and specifically requesting “individual sequestered voir dire within
the Court’s chambers.” (Emphasis added.) In addition, at a pretrial conference on
November 23, 2010, defense counsel asked that voir dire be conducted
“individually and in camera.” (Emphasis added.) Defense counsel argued that “it
would be better to do this limited individualized questioning in chambers so the
jurors don’t have to worry about the camera and that their responses will be
broadcast, etc.” Counsel noted, “My experience is [that in-chambers voir dire]
encourages the jurors to be more forthright” and “will put the jurors more at ease
and get more honest answers.” Later, counsel again asked the court to “please note
our preference of doing things in chambers initially.”
       {¶ 49} After the completion of the individual voir dire and at the request of
the prosecution, the trial court stated on the record its reasons for closing the
courtroom for individual voir dire. The prosecutor then asked whether Sowell was




                                          14
                                January Term, 2016




willing to affirmatively consent to the procedure the trial court had used, but
defense counsel declined, stating: “We waive nothing, your Honor.”
       {¶ 50} The doctrine of invited error specifies that a litigant may not “take
advantage of an error which he himself invited or induced.” Hal Artz Lincoln-
Mercury, Inc. v. Ford Motor Co., Lincoln-Mercury Div., 28 Ohio St.3d 20, 502
N.E.2d 590 (1986), paragraph one of the syllabus. “This court has found invited
error when a party has asked the court to take some action later claimed to be
erroneous, or affirmatively consented to a procedure the trial judge proposed.”
State v. Campbell, 90 Ohio St.3d 320, 324, 738 N.E.2d 1178 (2000). Moreover,
the doctrine of invited error applies to the erroneous closure of courtroom
proceedings. See State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d
81, ¶ 64, citing State v. Seiber, 56 Ohio St.3d 4, 17, 564 N.E.2d 408 (1990).
       {¶ 51} Sowell contends that his request for individually sequestered voir
dire sought only to have each prospective juror’s voir dire conducted outside the
presence of other prospective jurors. He denies that his motion requested that the
individual voir dire also be closed to the public. However, a request for an “in
chambers” or “in camera” voir dire is equivalent to a request to exclude the public,
since a judicial chambers “is ordinarily not accessible to the public.” State v. Wise,
176 Wash.2d 1, 12, 288 P.3d 1113 (2012). “In camera” has been defined to mean
either “[i]n the judge’s private chambers” or “[i]n the courtroom with all spectators
excluded.” (Emphasis added.) Black’s Law Dictionary 878 (10th Ed.2014).
Moreover, a trial court may not exclude cameras from “court proceedings that are
open to the public.” See Sup.R. 12(A). Thus, defense counsel’s explicit request
for voir dire in chambers, with cameras excluded, cannot be interpreted as anything
but a request to close the proceedings to the public. Further, defense counsel stated
that the defense was not waiving the right to a public trial only after the closed
individual voir dire that counsel had requested was completed.




                                         15
                              SUPREME COURT OF OHIO




         {¶ 52} Accordingly, Sowell invited the court to close the individual voir
dire in this case, and pursuant to the invited-error doctrine, he is not entitled to
complain of an error that he himself induced the trial court to commit.
         {¶ 53} Thus, Sowell’s supplemental propositions of law are overruled.
                                  Change of Venue
         {¶ 54} In the first proposition of law, Sowell contends that prejudicial
pretrial publicity denied him a fair trial, that the publicity was so pervasive that the
trial court should have presumed prejudice, and that the court erred by denying his
requests for a change of venue.
         {¶ 55} The voir dire began in June 2011, more than 18 months after the
discovery and exhumation at Sowell’s home located in a major metropolitan area.
Although Sowell refers to Cleveland as a “small city,” the pool of jurors was drawn
from Cuyahoga County, whose population in the 2010 Census was 1,280,122. See
www.census.gov/2010census/popmap/ipmtext.php?fl=39:39035 (accessed Oct. 17,
2016).
         {¶ 56} The larger the community, the more likely that impartial jurors can
be found within it. See State v. Gribble, 165 N.H. 1, 19-20, 66 A.3d 1194 (2013).
And “[i]t is well recognized that in a small rural community ‘in contrast to a large
metropolitan area, a major crime is likely to be embedded in the public
consciousness with greater effect and for a longer time.’ * * * Thus both the size
and the character of the county’s population, while not determinative, are factors to
be considered.” People v. Hamilton, 48 Cal.3d 1142, 1158, 259 Cal.Rptr. 701, 774
P.2d 730 (1989), quoting People v. Martinez, 29 Cal.3d 574, 581, 174 Cal.Rptr.
701, 629 P.2d 502 (1981).
         {¶ 57} The record indicates widespread knowledge of the case in Cuyahoga
County. Almost 200 prospective jurors completed a questionnaire containing a
question about pretrial publicity. Responses to that question indicate that only
about six of the prospective jurors had not been exposed in some form to pretrial




                                          16
                                January Term, 2016




publicity about the case. During voir dire, 128 members of the venire were
questioned about pretrial publicity. Of these, all but three had been exposed to
some pretrial publicity about Sowell’s case, but 62 of them stated that they had not
formed an opinion about the case and could set aside whatever they had heard; 17
others had formed opinions about Sowell’s guilt but stated that they were able to
set their opinions aside and decide the case on the basis of the evidence presented
in court. Eight others had formed opinions, but the court excused them for other
reasons. Only 22 jurors were excused for cause on the ground that they had formed
opinions that they could not set aside.
       {¶ 58} Sowell relies on Irvin v. Dowd, 366 U.S. 717, 727, 81 S.Ct. 1639, 6
L.Ed.2d 751 (1961), where “370 prospective jurors or almost 90% of those
examined on the point * * * entertained some opinion as to guilt,” and 268—over
62 percent of those examined on pretrial publicity—were actually excused “as
having fixed opinions as to the [accused’s] guilt.” That is not the circumstance
exhibited in this case, and Irvin is therefore factually distinguishable. The publicity
prior to Sowell’s trial was not so pervasive that Sowell was denied a fair trial.
       {¶ 59} In State v. Lundgren, 73 Ohio St.3d 474, 479-480, 653 N.E.2d 304
(1995), we held that the court had not abused its discretion in denying a change of
venue under circumstances comparable to those in this case:


           The trial court selected a jury following an extensive eight-
           day voir dire which included individualized questioning as to
           the impact of pretrial publicity. The trial court readily excused
           those in the venire who had formed fixed opinions or were
           otherwise unsuitable. The jurors selected did not appear to
           have been excessively exposed to media publicity. Those who
           said they held views expressed tentative impressions and all
           of the jurors selected promised to set aside any information




                                          17
                             SUPREME COURT OF OHIO




           received or views held and decide the case only on the
           evidence offered at trial.     Despite the fact that pretrial
           publicity was extensive, the trial judge was in the best position
           to judge each juror’s demeanor and fairness. [The accused]
           has not established the rare case in which prejudice is
           presumed.


       {¶ 60} Similarly, here, we cannot conclude that the trial court abused its
discretion in denying Sowell’s motions for change of venue. We overrule this
proposition of law.
                                      Voir Dire
                          Discussion of Mitigating Factors
       {¶ 61} Sowell’s second proposition of law asserts that the trial court
impermissibly restricted voir dire of prospective jurors by refusing to let defense
counsel inquire of them regarding their understanding of and attitudes toward the
mitigating factors that could arise based on the evidence in the case. This claim is
not well taken. In State v. Jones, 91 Ohio St.3d 335, 338, 744 N.E.2d 1163 (2001),
this court held: “During voir dire, a trial court is under no obligation to discuss, or
to permit the attorneys to discuss, specific mitigating factors.”          Thus, this
proposition of law is overruled.
                                Challenges for Cause
       {¶ 62} The third proposition of law contends that the trial court erred in
overruling challenges for cause to a number of prospective jurors.
       {¶ 63} On a challenge for cause, “[t]he ultimate question is whether the
‘juror sw[ore] that he could set aside any opinion he might hold and decide the case
on the evidence, and [whether] the juror’s protestation of impartiality [should be]
believed.’ ” (Brackets sic.) White v. Mitchell, 431 F.3d 517, 538 (6th Cir.2005),
quoting Patton v. Yount, 467 U.S. 1025, 1036, 104 S.Ct. 2885, 81 L.Ed.2d 847




                                          18
                                January Term, 2016




(1984). A trial court’s resolution of a challenge for cause will be upheld on appeal
unless it is so unsupported by substantial testimony that it constitutes an abuse of
discretion. State v. Tyler, 50 Ohio St.3d 24, 31, 553 N.E.2d 576 (1990); State v.
Wilson, 29 Ohio St.2d 203, 211, 280 N.E.2d 915 (1972).
                                Death Qualification
       {¶ 64} A defendant has a constitutional right to exclude for cause any
prospective juror who will automatically vote for the death penalty. Morgan v.
Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992). “A juror who will
automatically vote for the death penalty in every case will fail in good faith to
consider the evidence of aggravating and mitigating circumstances as the
instructions require him to do.” Id. at 729.
       {¶ 65} Question 7 on the jury questionnaire asked: “In your opinion, is the
death penalty the only appropriate sentence in a case involving the purposeful
killing of 11 people * * * at separate times over a two and one-half year period or
would a sentence of life in prison without the possibility of parole also be an
appropriate sentence?” Sowell contends that several prospective jurors answered
this and other questions in a way that shows them to be automatic votes for a death
sentence in the event of conviction.
       {¶ 66} In response to this question, Juror 23 wrote: “Yes, the death penalty
is appropriate if found guilty.” However, in response to a different question asking
jurors to state “your GENERAL FEELINGS regarding the death penalty”
(boldface and capitalization sic), Juror 23 stated: “an eye for an eye seems fair
depending on the circumstances. But I think it’s on a case by case basis.” On
Question 8, asking whether a life sentence with possible parole after 25 or 30 full
years could be appropriate, Juror 23 wrote: “I’m not sure if any of these questions
can be answered without first hearing the facts.” And on Question 9, which asked:
“What would be important for you to know in deciding whether to impose a life
sentence without the possibility of release or a sentence of death?” the juror wrote:




                                         19
                             SUPREME COURT OF OHIO




“Everything.” The answers to Questions 8 and 9 support the trial court’s finding
that Juror 23 was not an automatic-death-penalty juror.
       {¶ 67} That is further confirmed by Juror 23’s voir dire, which Sowell
glosses over in his focus on the questionnaire. Juror 23 said: “[E]very situation is
different, but * * * if someone knowingly and purposely kills another human being,
* * * you would have to look at their reasons for it, and why, and * * * if * * * they
knew exactly what they were doing, then I think they should also die.” Juror 23
later disagreed when defense counsel suggested that the following statement
represented his views: “[R]egardless of the second phase, if you take a life * * * in
phase one, if you‘re found guilty, and you’ve taken a life, then your life must be
taken.” Juror 23 responded: “No. * * * I said on a case-by-case circumstance.” He
stated that he could consider each of the life alternatives if the aggravating
circumstances were outweighed by the mitigating factors.             Thus, the record
supports the trial court’s ruling on Sowell’s challenge for cause.
       {¶ 68} On the questionnaire, Juror 46 answered the question regarding
whether the death penalty was the only appropriate sentence by stating, “I strongly
believe he should go straight to death row with no chance of appeals. The only
decision left to be made is the date of his execution.” However, on voir dire she
said she could consider all three of the lesser options. When asked about what she
had written on her questionnaire, she stated: “My answer is based on all of the
* * * information that I had going into this case, without knowing the evidence,
without knowing * * * any other * * * details.” She stated: “Those are my views,
but * * * if I was chosen as a juror, I would take it as my job, I would take it
seriously and I would leave all of that at the door.” Accordingly, the record
supports the trial court’s denial of Sowell’s for-cause challenge to this juror.
       {¶ 69} Juror 60 was asked during voir dire if he would consider a
defendant’s background in deciding on a sentence. Juror 60 agreed “[o]nly to the
extent that it was part of the evidence presented by either side or both sides * * *.




                                          20
                                January Term, 2016




If that was part of the evidence * * * as to what happened and why and so on, only
to that extent. Otherwise, no.” He then stated that he would consider “all factors
that are relevant presented by both sides,” but “[o]nly relevant factors.” He clarified
that if either side brought up something that was “totally irrelevant to what is being
discussed,” he would “disregard that as a nonissue.”
       {¶ 70} The defense challenged Juror 60 for cause on the ground that he “has
his own concept of what is relevant, which may be inconsistent with what the law
says.” The trial judge overruled the challenge. The judge found that Juror 60’s
answer indicated that he “doesn’t take any preconceived opinions with him
concerning anything” and “would consider all factors.”
       {¶ 71} Juror 60 was not an automatic-death-penalty juror and thus had not
“already formed an opinion on the merits.” Morgan, 504 U.S. at 728, 112 S.Ct.
2222, 119 L.Ed.2d 492. Moreover, the trial court appears to have understood Juror
60’s statement that he would “disregard” evidence that was “totally irrelevant to
what is being discussed” as meaning that he would give no weight to evidence that
he did not find to be mitigating. The judge’s view of Juror 60’s words is reasonable.
       {¶ 72} Question 8 on the jury questionnaire asked: “In your opinion, in a
case [involving the purposeful killing of 11 people], would a sentence of life in
prison with the possibility of parole after either 25 full years of imprisonment, or
30 full years of imprisonment, also be an appropriate sentence?” Sowell claims
that several prospective jurors should have been disqualified because their answers
to Question 8 indicated that they were unable to consider the full range of possible
life-sentencing options.
       {¶ 73} Juror 21 answered “No” to question 8 with no elaboration. But,
while the defense challenged Juror 21 for cause, it did not challenge him on the
ground Sowell now cites—his alleged inability to consider the full range of
sentencing options. Moreover, as Sowell concedes, Juror 21 stated during voir dire




                                          21
                             SUPREME COURT OF OHIO




that he could fairly consider a life sentence with possible parole after either 25 or
30 full years.
        {¶ 74} Juror 22 answered “No” to question 8 without further elaboration.
But on voir dire, she stated that she could fairly consider the options of life with
possible parole after 25 or 30 full years.
        {¶ 75} Juror 24 said during voir dire that she “would not lean toward” life
with parole eligibility after 25 full years and that she “would be more negative
toward that.” When asked what her answer “today” would be to question 8 about
a life sentence with possible parole, she said: “My answer today is leaning toward
no. I might have a little bit of flexibility, but I am definitely leaning towards no.”
This answer applied to the parole-after-25-years life sentence; asked about life with
possible parole after 30 years, she stated: “That’s a possibility that I may be more
flexible and say possibly.” But she repeated that she could not fairly consider life
with possible parole after 25 years.
        {¶ 76} After follow-up questioning about some of the concepts, the
prosecutor asked Juror 24 to explain her answer on the questionnaire stating that a
sentence of life with possible parole after 25 or 30 years would not be appropriate.
Juror 24 stated: “[F]rom what you’re saying to me, it changed my opinion on the
no.” (Emphasis added.)
        {¶ 77} Under defense questioning, she again stated that she could not fairly
consider a life sentence with parole eligibility after 25 years:


                 MR. PARKER: * * * So the question is, even though Mr.
        Sowell * * * in this hypothetical, he’s been found guilty of
        aggravated murder and * * * at least one of the specifications * * *,
        under that situation * * * can you fairly consider a sentence of 25
        full years of imprisonment before the possibility of parole?




                                             22
                                January Term, 2016




               JUROR NO. 24: I was given the option of 30 prior, and it
       seems to make a difference to me.
               MR. PARKER: Okay, we’ll ask both. Let’s start with 25.
               JUROR NO. 24: No.
               MR. PARKER: The answer for 25 is no?
               JUROR NO. 24: Yes.
               MR. PARKER: You’d have an easier time with 30?
               JUROR NO. 24: Easier time with 30.
               MR. PARKER: Twenty-five, your answer is no.
               JUROR NO. 24: No.


(Capitalization sic.)
       {¶ 78} Finally, the trial judge explained to the juror that “we’re not asking
you to choose a sentence today” and then stated:


               The only thing we want to know is * * * if the State is not
       able to prove that death is an appropriate sentence, would you be
       able to consider all three of those life options?
               In other words, I think the question is going to be are you
       going to rule out one right off the bat, because that’s the way you
       feel today, and there is nothing that is going to change your mind?
               JUROR NO. 24: You really helped clarify it, my answer is
       not no, it’s yes.
               THE COURT: You would consider all three?
               JUROR NO. 24: I would in that case.


(Capitalization sic.)




                                         23
                             SUPREME COURT OF OHIO




        {¶ 79} Juror 24’s final response suggests that her earlier answers were the
product of confusion. Once the specifics were clarified for her, her answer was
“not no, but yes.” This final response indicated that she would consider all three
life options.
        {¶ 80} Juror 34 answered “No” without elaboration to Question 8 regarding
the propriety of a life sentence with possible parole. However, on voir dire, he was
asked if “after listening to everything, after weighing everything,” he could “fairly
consider a sentence of * * * 25 full years to life?” He said: “Yes, I probably could.”
        {¶ 81} Juror 36 indicated on her questionnaire that death or life without
parole would be the only appropriate sentences and that life with possible parole
after 25 or 30 years would not be appropriate. At one point during voir dire, she
appeared to reiterate that opinion. However, the trial court asked her whether she
could consider all three sentencing options, and she stated that she could.
        {¶ 82} Juror 62 indicated on her questionnaire that a life sentence with
possible parole after 25 or 30 years would not be an appropriate sentence, in her
opinion. On voir dire, asked again to give “just [her] opinion,” she stated that death
was the only appropriate penalty for the purposeful, planned killing of an innocent
person. Nevertheless, when asked on voir dire if she could consider the options of
“25 full years to life” or “30 full years to life,” Juror 62 stated that she could
consider both “after hearing the facts.”
        {¶ 83} In each of these instances, the trial court determined that the juror’s
protestation of impartiality should be believed. See Patton, 467 U.S. at 1036, 104
S.Ct. 2885, 81 L.Ed.2d 847. And in each instance, the trial court’s determination
was supported by “substantial testimony” given by each juror. Tyler, 50 Ohio St.3d
at 31, 553 N.E.2d 576. Each challenged juror indicated that he or she was able to
put aside his or her opinion that a life sentence involving possible parole was
inappropriate for a case similar to this one.




                                           24
                                 January Term, 2016




        {¶ 84} The trial court did not abuse its discretion when it accepted the sworn
statements of these jurors on voir dire that they could set aside the opinions they
had expressed on the questionnaire. It was the trial court’s province to determine
each juror’s credibility, and the record does not show that the trial court abused its
discretion with respect to any of these jurors.
                      Pretrial Publicity or Knowledge of Case
        {¶ 85} Juror 22, who has been mentioned previously, answered yes to a
question on her questionnaire asking whether she had “read, seen or heard media
accounts” of this case. She wrote that she recalled “[h]ow they kept finding more
& more bodies buried in and around this man’s house. And the painfull [sic]
reactions of so many families * * *.”
        {¶ 86} On voir dire, Juror 22 admitted forming an opinion “[t]hat more than
likely Mr. Sowell was * * * the perpetrator” because “[t]he evidence that I heard
through the media pointed in that direction.” However, she specifically stated on
voir dire that she would set aside that opinion and anything she had previously
heard and would base her decision solely on the evidence that would come before
her. She also stated that she had not been “glued to the TV wanting to know” about
the murders. And while she recalled seeing televised reports on the finding of the
bodies, she did not “know * * * any fine details.”
        {¶ 87} When the defense challenged Juror 22 for cause, counsel argued that
her “body language” contradicted her promise to set aside what she had heard about
the case. The trial judge rejected that claim: “I don’t think there was any body
language that would indicate that she was trying to say two different things.” This
is the type of credibility determination that falls within the trial court’s discretion.
We decline to disturb it.
        {¶ 88} Juror 62, who has been mentioned previously, disclosed on voir dire
that she had once lived across from Sowell’s house on Imperial Avenue. The
defense challenged this juror for cause in part because, according to defense




                                          25
                              SUPREME COURT OF OHIO




counsel, “it seems that she has quite a bit more information about the particular case
than I think she’s really telling us.” However, nothing in the record supports that
impression. Juror 62 had lived on Imperial Avenue “about 30 years earlier” and
for only “a couple of months.” Her decades-old connection with the area provides
no reasonable basis to disturb the trial judge’s decision to deny the challenge for
cause.
         {¶ 89} None of the claims in this proposition of law justify a finding that
the trial court abused its discretion in denying these challenges for cause. This
proposition is not well taken.
                                     Guilt Phase
                           Use of Initials to Sign Verdicts
         {¶ 90} In the tenth proposition of law, Sowell argues that 195 of the 196
verdicts the jury returned failed to comply with the requirement of Crim.R. 31(A)
and R.C. 2945.171 that the verdict be “signed” by the jurors.
         {¶ 91} When the court submitted the case to the jury during the guilt phase
of trial, it noted that the jury would probably have “a couple hundred verdict forms
* * * to complete.” The judge said: “In order to facilitate that, * * * I think you can
sign your names to the first series of verdict forms and perhaps even initial after
your name so we have an idea or recognition of your initials. Then you can
probably use your initials after that because as long as we know that it’s your mark
and that it is your verdict, then it is a proper form.”
         {¶ 92} After the jury was instructed to deliberate, defense counsel objected
to the trial court’s decision to permit the jurors to complete the verdict forms by
initialing them. The jurors completed the verdict forms as suggested by the trial
court.
         {¶ 93} Crim.R. 31(A) provides: “The verdict shall be unanimous. It shall
be in writing, signed by all jurors concurring therein, and returned by the jury to
the judge in open court.” Likewise, R.C. 2945.171 provides: “In all criminal cases




                                           26
                                January Term, 2016




the verdict of the jury shall be in writing and signed by each of the jurors concurring
therein.”
       {¶ 94} Sowell contends that “signed,” as used in Crim.R. 31(A) and R.C.
2945.171, requires more than mere initials—that these provisions create a
“requirement of signing one’s name.” The state argues that initials can constitute
a signature if the juror initialing the verdict form so intends and if there is no
prejudice from the use of initials.
       {¶ 95} In cases involving statutory interpretation, the court “must begin [its]
analysis by examining the language of the statute.” State v. Hanning, 89 Ohio St.3d
86, 91, 728 N.E.2d 1059 (2000). “Words and phrases shall be read in context and
construed according to the rules of grammar and common usage. Words and
phrases that have acquired a technical or particular meaning, whether by legislative
definition or otherwise, shall be construed accordingly.” R.C. 1.42.
       {¶ 96} The term “signed” is not limited in meaning to the writing of one’s
name in full. Black’s Law Dictionary defines the verb “sign” as follows: “To
identify (a record) by means of a signature, mark, or other symbol with the intent
to authenticate it as an act or agreement of the person identifying it * * *.”
(Emphasis added.) Black’s at 1593. See also 2 Burrill, Law Dictionary and
Glossary 467 (2d Ed.1860) (signature may be “expressed by the party's initials”);
2 Rapalje & Lawrence, A Dictionary of American and English Law 1192 (1883)
(“a person signs a document when he writes or marks something on it in token of
his intention to be bound by its contents”).
       {¶ 97} In construing the term “signed,” we note that Crim.R. 1(B) provides
that the Rules of Criminal Procedure “shall be construed and applied to secure the
fair, impartial, speedy, and sure administration of justice, simplicity in procedure,
and the elimination of unjustifiable expense and delay.” See also R.C. 2901.04(B).
       {¶ 98} We conclude that the term “signed,” as used in Crim.R. 31(A) and
R.C. 2945.171, is not limited to full signatures and that Crim.R. 31(B) will permit




                                          27
                               SUPREME COURT OF OHIO




jurors to use their initials to sign verdict forms at the direction of a trial court in the
exercise of its discretion. Doing so will promote speed, administration of justice,
and simplicity in procedure. Nor can we see any reason to suppose that our
construction in this instance would hinder the “fair, impartial, speedy, and sure
administration of justice.”
        {¶ 99} Our conclusion in this case recognizes that the jurors had 196 verdict
forms to sign during the guilt phase of the trial, and in these circumstances, we do
not believe that the trial court acted unreasonably, unconscionably, or arbitrarily by
permitting jurors to sign one verdict form with their full signatures and then
permitting them to use their initials to signify assent to the 195 remaining verdicts.
Nothing in the record suggests that any of the jurors did not actually initial the
verdict forms or that they did not intend their initials to function as their signatures.
Accordingly, we overrule this proposition of law.
                        Admission of Victim-Impact Evidence
        {¶ 100} In the sixth proposition, Sowell alleges that the trial court violated
his constitutional rights by admitting victim-impact evidence during the guilt phase
of trial, when family members of the victims testified about the victims. Sowell,
however, fails to identify any specific testimony that should have been excluded
and states in general terms that the state called 21 witnesses whose testimony filled
800 pages continued within nine volumes of transcript. “We are not obligated to
search the record or formulate legal arguments on behalf of the parties * * *.”
Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, at ¶ 19.
Accordingly, this proposition of law is overruled.
                                      Indictment
                                  Death Specifications
        {¶ 101} In the 11th and 12th propositions of law, Sowell takes issue with
the manner in which the death specifications were alleged in the indictment and
with the instructions submitted to the jury.




                                            28
                                January Term, 2016




                        Course-of-Conduct Specifications
       {¶ 102} The 11th proposition of law alleges that the state charged Sowell
with duplicative course-of-conduct specifications.
       {¶ 103} The indictment charged Sowell with 13 course-of-conduct death
specifications for each count of aggravated murder.        Each course-of-conduct
specification charged him with a course of conduct consisting of the purposeful
killing of the victim named in the aggravated-murder count and the purposeful
killing (or attempt to kill) one of the other victims. For example, Count 1 charged
Sowell with the aggravated murder of Tonia Carmichael. Specification 3 to Count
1 charged that the aggravated murder of Carmichael “was part of a course of
conduct in which the offender purposely killed Tonia Carmichael and also
purposely killed Nancy Cobbs.” Specification 4 was identical, except that Tishana
Culver’s name was substituted for that of Cobbs. Thus, each victim of aggravated
murder or attempted murder was named in a separate course-of-conduct
specification.
       {¶ 104} We have repeatedly held that this is not the correct way to allege
course-of-conduct specifications under R.C. 2929.04(A)(5). “Multiple course-of-
conduct specifications are duplicative and must be merged at the sentencing phase.
* * * In fact, such multiple course-of-conduct specifications should not even be
included in an indictment.” State v. Mitts, 81 Ohio St.3d 223, 231, 690 N.E.2d 522
(1998). “Each aggravated murder count should thus contain only one specification
that [the defendant’s] acts were part of a course of conduct involving the purposeful
killing of or attempt to kill two or more persons.” State v. Spisak, 36 Ohio St.3d
80, 84, 521 N.E.2d 800 (1988).
       {¶ 105} However, we have also stated: “[I]f such multiple specifications are
included in an indictment, the ‘trial court should instruct the jury in the penalty
phase that those duplicative specifications must be considered merged for purposes
of weighing the aggravating circumstances against the mitigating factors.’ ” Mitts




                                         29
                                 SUPREME COURT OF OHIO




at 231, quoting State v. Garner, 74 Ohio St.3d 49, 53, 656 N.E.2d 623 (1995). As
Sowell concedes, in this case, the trial court did instruct the jury that the duplicative
course-of-conduct specifications were merged into a single course-of-conduct
specification.
        {¶ 106} Sowell contends, however, that the trial court’s correct instruction
to the jury to consider only one course-of-conduct specification for each aggravated
murder was insufficient to prevent prejudice. He argues that “the spillover effect
of having previously determined 13 course-of-conduct specifications is inescapable
and necessarily tainted the weighing process.” This contention is speculative at
best and inconsistent with the presumption that jurors follow the instructions given
by a trial court judge. See, e.g., State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-
160, 840 N.E.2d 1032, ¶ 54.
        {¶ 107} Sowell also points out that the prosecutor’s closing penalty-phase
argument repeatedly stressed the number of victims involved in this case.
However, there was nothing unfairly prejudicial in asking the jurors to consider the
number of murders and attempted murders. The jury is required to consider
evidence relevant to “the nature and circumstances of the aggravating
circumstances.” R.C. 2929.03(D)(1). Even though there was only one course of
conduct, the number of murders and attempted murders making up that course of
conduct is relevant to the nature and circumstances of the aggravating
circumstance.
        {¶ 108} Accordingly, Sowell’s 11th proposition is overruled.
                              Felony-Murder Specifications
        {¶ 109} The felony-murder specifications attached to each aggravated-
murder count1 charged that Sowell either “was the principal offender in the
commission of the Aggravated Murder, or, if not the principal offender, committed

1
  Since the felony-murder specifications relating to Leshanda Long’s murder were not submitted to
the jury, this claim applies to the other ten aggravated murders.




                                               30
                                January Term, 2016




the Aggravated Murder with prior calculation and design.” During the guilt phase
of the trial, when instructing the jury on the felony-murder specification, the court
did not instruct the jurors that in order to convict Sowell of that specification, they
had to agree unanimously on which of these two alternatives (principal offender or
prior calculation and design) they found Sowell guilty.
       {¶ 110} Sowell’s 12th proposition of law correctly notes that the trial
court’s failure to so instruct constitutes error. See State v. Moore, 81 Ohio St.3d
22, 40, 689 N.E.2d 1 (1998).
       {¶ 111} Sowell’s contention is that the jury may have reached “patchwork
verdicts” on the specification, i.e., finding him guilty of the specification without
unanimously finding that one of the two alternatives had been proven. Sowell
concedes, however, that he failed to object at trial, and therefore plain error is the
appropriate standard of review.
       {¶ 112} Plain error does not exist in this instance, because the jury
unanimously found Sowell guilty of each of the aggravated-murder counts. And
for each victim, one of the aggravated-murder counts alleged that Sowell acted with
prior calculation and design.       Those verdicts reflect the jury’s unanimous
determination that Sowell had committed each of the murders with prior calculation
and design. Hence, contrary to Sowell’s argument, there is no possibility that the
trial court’s omission of the unanimity instruction in this case led to a patchwork
verdict. See State v. Woodard, 68 Ohio St.3d 70, 75, 623 N.E.2d 75 (1993); Moore
at 40, citing State v. Burke, 73 Ohio St.3d 399, 405, 653 N.E.2d 242 (1995).
       {¶ 113} Thus, Sowell cannot demonstrate that the outcome of the guilt
phase clearly would have been different but for the alleged error. No plain error is
present, and Sowell’s 12th proposition is overruled.
                           “Carbon-Copy” Rape Counts
       {¶ 114} The indictment against Sowell contained two pairs of identically
phrased rape counts. Count 72 is identical to Count 73, and Count 78 is identical




                                          31
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to Count 79. Counts 72 and 73 charged Sowell with raping “Jane Doe II,” i.e.,
Latundra Billups, as follows:


       RAPE R.C. 2907.02(A)(2)
       DATE OF OFFENSE: September 22, 2009
               The Grand Jurors, on their oaths, further find that the
       Defendant(s) unlawfully engaged in sexual conduct with Jane Doe
       II, by purposely compelling her to submit by force or threat of force,
       contrary to the form of the statute in such case made and provided
       and against the peace and dignity of the State of Ohio.


(Boldface, capitalization, and underlining sic.)
       {¶ 115} Similarly, Counts 78 and 79 charged Sowell with raping “Jane Doe
III,” i.e., Shawn Morris, as follows:


       RAPE R.C. 2907.02(A)(2)
       DATE OF OFFENSE: October 20, 2009
               The Grand Jurors, on their oaths, further find that the
       Defendant(s) unlawfully did engage in sexual conduct with Jane
       Doe III by purposely compelling her to submit by force or threat of
       force, contrary to the form of the statute in such case made and
       provided and against the peace and dignity of the State of Ohio.


(Boldface, capitalization, and underlining sic.)
       {¶ 116} In his fourth proposition of law, Sowell contends that the inclusion
of these “carbon-copy” charges in the indictment denied him due process because
they denied him adequate notice of the specific charges against him and because
they left him open to being subjected to future jeopardy for the same offenses.




                                         32
                                January Term, 2016




       {¶ 117} Sowell’s claim is based on Valentine v. Konteh, 395 F.3d 626 (6th
Cir.2005). In Valentine, the defendant was indicted on 20 counts of rape of a minor
and 20 counts of felonious sexual penetration of a minor. All 20 rape counts were
worded identically with one another; likewise, all 20 penetration counts were
worded identically with one another. Each count alleged that the offense had
occurred “between March 1, 1995 and January 16, 1996.” Neither the indictment
nor the bill of particulars differentiated among the counts in any way.
       {¶ 118} At trial, the victim testified that the defendant had raped her about
20 times and digitally penetrated her about 15 times. No dates were given for any
of these incidents, nor were any other specific facts given whereby the trier of fact
might have identified specific incidents. The defendant was convicted of 20 counts
of rape and of felonious sexual penetration, although a court of appeals reversed
five convictions for felonious sexual penetration. Valentine at 628-629.
       {¶ 119} The Sixth Circuit determined that the accused in Valentine had been
denied due process and was entitled to habeas corpus relief. The court explained
that an indictment satisfies due process only “if it (1) contains the elements of the
charged offense, (2) gives the defendant adequate notice of the charges, and (3)
protects the defendant against double jeopardy.” Id. at 631.
       {¶ 120} Valentine held that the indictment in that case failed to give
constitutionally adequate notice of the charges.


       [T]he constitutional error in this case is traceable * * * to the fact
       that there is no differentiation among the counts.        * * * [I]f
       prosecutors seek multiple charges against a defendant, they must
       link those multiple charges to multiple identifiable offenses. * * *
       Courts cannot uphold multiple convictions when they are unable to
       discern the evidence that supports each individual conviction.




                                         33
                             SUPREME COURT OF OHIO




395 F.3d at 636-637.
       {¶ 121} For similar reasons, the state’s failure in Valentine to differentiate
the charges, either in the indictment or at trial, also failed to protect the defendant
against the future possibility of double jeopardy. “We cannot be sure what double
jeopardy would prohibit because we cannot be sure what factual incidents were
presented and decided by this jury.” Id. at 635.
       {¶ 122} This case is factually distinguishable from Valentine. First, instead
of two sets of 20 identically phrased charges, this case presents two sets of two
identically phrased charges. Moreover, each set of identical counts in this case
alleges that the rapes took place on specifically identified dates, rather than over a
period of eight and one-half months as in Valentine. And the state’s evidence at
trial showed that four specific, different acts of rape took place: two against Billups
and two against Morris. Billups testified at trial that Sowell raped her twice on
September 22, 2009, and Morris testified that Sowell raped her twice on October
20, 2009.
       {¶ 123} On these facts, it cannot be said that “there was no differentiation
among the counts.” 395 F.3d at 636. Unlike Valentine, the record in this case does
not leave the court “unable to discern the evidence that supports each individual
conviction.”   Id. at 637.     Rather, Valentine involved a situation with little
resemblance and no applicability to this case. This proposition of law lacks merit.
No Allegation that Aggravation Outweighs Mitigation
       {¶ 124} In his 14th proposition, Sowell argues that the indictment against
him was insufficient because it failed to allege that the aggravating circumstances
outweigh the mitigating factors beyond a reasonable doubt. He claims that the
intersection of Ohio and federal constitutional law requires that an averment of this
type be included in a capital indictment.
       {¶ 125} Sowell notes the Ohio Constitution’s guarantee that “no person
shall be held to answer for a capital, or otherwise infamous, crime, unless on




                                            34
                                January Term, 2016




presentment or indictment of a grand jury.”          Article I, Section 10, Ohio
Constitution. Citing Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147
L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153
L.Ed.2d 556 (2002), Sowell then argues that the fact that the aggravating
circumstances outweigh the mitigating factors is “the functional equivalent of an
element,” Apprendi at 494, fn. 19, of the capital offense, because a jury’s
determination that the aggravating circumstances outweigh the mitigating factors
is required for a death sentence under Ohio law. Finally, because the “fact” that
the aggravating circumstances outweigh the mitigating factors is to be considered
an “element” of the offense, Sowell argues that “it must be first found by the grand
jury and included in the indictment” before it can be submitted to a petit jury.
       {¶ 126} His claim is not well taken. Apprendi and Ring are rooted in the
Sixth Amendment right to a jury trial. “Other than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
(Emphasis added.) Apprendi at 490.
       {¶ 127} In contrast, “[t]he purposes of an indictment are to give an accused
adequate notice of the charge, and enable an accused to protect himself or herself
from any future prosecutions for the same incident.” State v. Buehner, 110 Ohio
St.3d 403, 2006-Ohio-4707, 853 N.E.2d 1162, ¶ 7. “[W]e have recognized that
even when an indictment fails to charge the mens rea of the offense, it is not
defective as long as it ‘tracks the language of the criminal statute describing the
offense,’ because that suffices to ‘provide[ ] the defendant with adequate notice of
the charges against him.” (Brackets sic.) State v. Wesson, 137 Ohio St.3d 309,
2013-Ohio-4575, 999 N.E.2d 557, ¶ 24, quoting State v. Horner, 126 Ohio St.3d
466, 2010-Ohio-3830, 935 N.E.2d 26, ¶ 45. Similarly, “[a]n indictment that tracks
the language of the charged offense and identifies a predicate offense by reference




                                         35
                              SUPREME COURT OF OHIO




to the statute number need not also include each element of a predicate offense.”
Buehner at the syllabus.
       {¶ 128} In this case, the capital charges in the indictment tracked the
language of R.C. 2903.01(A) and (B), and the death specifications tracked the
language of R.C. 2929.04(A)(5) and (A)(7). Sowell does not contend that the
indictment’s omission of any averment as to the relative weight of aggravation and
mitigation deprived him of adequate notice of the charges against him. Thus, the
indictment satisfies Article I, Section 10 of the Ohio Constitution, and this
proposition of law is overruled.
                                    Penalty Phase
                           Exclusion of Sowell’s Plea Offer
       {¶ 129} Sowell’s eighth proposition of law asserts that the trial court should
have permitted the defense to inform the jury during the penalty phase that he had
offered to plead guilty in exchange for a life sentence. Sowell claims that this offer
was evidence of his acceptance of responsibility, and he argues the trial court was
required to admit it into evidence.
       {¶ 130} We previously considered and rejected a similar argument in State
v. Dixon, 101 Ohio St.3d 328, 2004-Ohio-1585, 805 N.E.2d 1042, stating: “The
trial court also ruled correctly by not allowing Dixon to introduce his offer to plead
guilty in exchange for dismissal of the death specifications. * * * [A] defendant’s
offer to plead guilty, never accepted by the prosecutor, is not relevant to the issue
of whether the defendant should be sentenced to death.” Id. at ¶ 69; see also Owens
v. Guida, 549 F.3d 399, 419-422 (6th Cir.2008) (collecting cases). We reaffirm our
holding in Dixon, and accordingly, we reject this claim.
                                   Mercy Instruction
       {¶ 131} The eighth proposition of law also claims that the trial court
improperly refused to give a proposed mercy instruction: “Mercy is a mitigating
factor that weighs against voting for the death penalty * * *.” We have consistently




                                          36
                                 January Term, 2016




rejected similar claims. See State v. Lorraine, 66 Ohio St.3d 414, 417-418, 613
N.E.2d 212 (1993); State v. O’Neal, 87 Ohio St.3d 402, 416, 721 N.E.2d 73 (2000);
State v. Williams, 99 Ohio St.3d 439, 2003-Ohio-4164, 793 N.E.2d 446, ¶ 93. In
accord, this eighth proposition of law is overruled.
                         “Presumption of Life” Instruction
        {¶ 132} Sowell’s ninth proposition of law asserts that the trial court erred
by failing to instruct the jury to apply a “presumption” in favor of a life sentence.
        {¶ 133} Sowell had requested a jury instruction that “there is a presumption
of life until and unless the state proves beyond a reasonable doubt that the
aggravating circumstances outweigh the mitigating factors and that death is the only
appropriate punishment.” The court declined the requested instruction, but did
instruct the jury:


                In order for you to decide that the sentence of death shall be
        imposed upon Anthony Sowell, the State of Ohio must prove
        beyond a reasonable doubt that the aggravating circumstances of
        which the defendant was found guilty are sufficient to outweigh the
        factors in mitigation of imposing the death sentence.
                The defendant does not have any burden of proof.


The trial court later instructed that after considering the evidence relevant to the
aggravating circumstances and the mitigating factors, the jurors were to


        then decide whether the State of Ohio proved beyond a reasonable
        doubt that the aggravating circumstances outweigh the mitigating
        factors present in this case.
                ***




                                          37
                             SUPREME COURT OF OHIO




               If you find that the State of Ohio has failed to prove beyond
       a reasonable doubt that the aggravating circumstances Anthony
       Sowell is guilty of committing are sufficient to outweigh the
       mitigating factors present in this case, then it is your duty to decide
       that the sentence of life imprisonment without the possibility of
       parole should be imposed upon the defendant.


       {¶ 134} We have held that “it is prejudicial error in a criminal case to refuse
to administer a requested charge which is pertinent to the case, states the law
correctly, and is not covered by the general charge.” State v. Scott, 26 Ohio St.3d
92, 101, 497 N.E.2d 55 (1986). “However, the trial court need not give the
defendant’s requested instructions verbatim but may use its own language to
communicate the same legal principles to the jury.” State v. Group, 98 Ohio St.3d
248, 2002-Ohio-7247, 781 N.E.2d 980, ¶ 108, citing State v. Sneed, 63 Ohio St.3d
3, 9, 584 N.E.2d 1160 (1992).
       {¶ 135} As defense counsel explained to the trial court when arguing in
favor of the proposed instruction, the “presumption of life” instruction was intended
to convey “that the State has the burden of proof at all times” and in particular, “the
burden of proving * * * that the aggravating circumstances outweigh the mitigating
factors beyond a reasonable doubt. * * * Life is the default judgment * * * unless
the State meets their burden.”
       {¶ 136} Here, the trial court’s instructions properly conveyed the state’s
burden of proof, and the requested instruction was therefore “covered by the general
charge.” Scott at 101. This ninth proposition of law is not well taken.
                         Ineffective Assistance of Counsel
       {¶ 137} In the fifth and 17th propositions of law, Sowell alleges that his trial
counsel rendered ineffective assistance of counsel.




                                          38
                                 January Term, 2016




        {¶ 138} To establish ineffective assistance of counsel, an appellant must
show (1) deficient performance by counsel, i.e., performance falling below an
objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable
probability that, but for counsel’s errors, the outcome of the proceeding would have
been different. Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373
(1989), paragraphs two and three of the syllabus.
        {¶ 139} The fifth proposition of law contends that defense counsel rendered
ineffective assistance by not conceding Sowell’s guilt during the guilt phase of trial.
The argument is that the evidence of guilt was so overwhelming that a reasonable-
doubt defense was hopeless.         Under those circumstances, Sowell contends,
conceding guilt was “the only reasonable strategy,” because the only thing to do
was to throw all possible effort into avoiding a death sentence. No rational lawyer,
he argues, would have tried to obtain an acquittal.
        {¶ 140} Sowell relies on Florida v. Nixon, 543 U.S. 175, 125 S.Ct. 551, 160
L.Ed.2d 565 (2004), which held that a defense trial counsel, who failed to obtain
the defendant’s consent to the strategy, had not rendered ineffective assistance by
expressly conceding his client’s guilt in the guilt phase and attempting instead to
focus on saving his client’s life. Nixon explained why competent counsel might
feel that conceding the client’s guilt would be the best strategy in a capital case:
when the defendant’s guilt is clear, pursuing a reasonable-doubt defense in the guilt
phase may be counterproductive, fostering cynicism in the jurors and making them
less receptive to mitigating factors in the penalty phase. Id. at 192. “Counsel
therefore may reasonably decide to focus on the trial’s penalty phase, at which time
counsel’s mission is to persuade the trier that his client’s life should be spared.” Id.
        {¶ 141} Nixon holds that choosing not to contest guilt may be a reasonable
strategy in a given case and does not stand for the proposition that it is




                                          39
                             SUPREME COURT OF OHIO




impermissible for defense counsel to contest guilt in the face of overwhelming
evidence.


       Because of the difficulties inherent in making the evaluation, a court
       must indulge a strong presumption that counsel’s conduct falls
       within the wide range of reasonable professional assistance; that is,
       the defendant must overcome the presumption that, under the
       circumstances, the challenged action “might be considered sound
       trial strategy.”


Strickland, 466 U.S. at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674, quoting Michel v.
Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955).
       {¶ 142} Sowell fails to demonstrate prejudice because his claim depends on
speculation about the jury’s possible reaction to his counsel’s strategy.          But
speculation is insufficient to demonstrate prejudice as defined by Strickland, i.e., a
reasonable probability that, but for counsel’s alleged errors, the outcome of the
proceeding would have been different. This proposition is overruled.
       {¶ 143} In the 17th proposition of law, Sowell contends that his counsel
were ineffective in failing to preserve the alleged errors that are the subjects of his
fourth, sixth, and 12th propositions of law. He argues that in a capital case, “the
failure to preserve error must be deemed inherently deficient” and “necessarily”
prejudicial.
       {¶ 144} To the contrary, “[t]he failure to object to error, alone, is not enough
to sustain a claim of ineffective assistance of counsel.” State v. Holloway, 38 Ohio
St.3d 239, 244, 527 N.E.2d 831 (1988). And Sowell’s definition of prejudice is not
supported by Strickland. It is not enough that an alleged error resulted in a
disadvantage for an accused. See Strickland, 466 U.S at 693, 104 S.Ct. 2052, 80
L.Ed.2d 674 (it is not sufficient for a defendant to show that errors impaired




                                          40
                                  January Term, 2016




presentation of the defense).       Strickland’s prejudice inquiry focuses on the
likelihood that, “but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” (Emphasis added.) Id. at 694.
           {¶ 145} Sowell further contends that counsel’s failure to object to
“duplicate” Counts 72, 73, 78, and 79 in the indictment based on Valentine v.
Konteh constituted ineffective assistance of counsel. But as noted in the discussion
of his fourth proposition, Valentine is readily distinguishable on its facts, and
counsel’s failure to make a Valentine-based objection to the indictment was not
deficient performance. Nor could Sowell demonstrate prejudice, because the
unrebutted testimony of Latundra Billups and Shawn Morris established that
Sowell raped each of them twice on the specific dates alleged in the indictment, so
he cannot show that but for counsel’s failure to object, he would not have been
convicted on those counts.
           {¶ 146} Sowell next argues that his counsel failed to object to “victim
impact evidence” in the guilt phase. However, as explained in the discussion of his
sixth proposition of law, he fails to identify any specific evidence or testimony that
should have been excluded. Thus, he fails to show either deficient performance or
prejudice. See Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900,
at ¶ 19.
           {¶ 147} Finally, Sowell urges that counsel failed to object to the felony-
murder specifications alleging in the alternative that he was the principal offender
or that he killed with prior calculation and design. As noted in the discussion of
the 12th proposition of law, the trial court erred in the instructions given to the jury
in this regard. But—as we explained in the discussion of that proposition—the jury
unanimously found Sowell guilty of felony murder with prior calculation and
design. For this reason, he cannot demonstrate that the outcome would have been
different but for the error. Thus, the 17th proposition of law is overruled.




                                           41
                             SUPREME COURT OF OHIO




                                Cumulative Error
       {¶ 148} In the 16th proposition of law, Sowell claims that the cumulative
effect of the various errors he alleges denied him a fair trial. However, “[a]s
[Sowell] offers no further analysis, this proposition lacks substance.” State v. Sapp,
105 Ohio St.3d 104, 2004-Ohio-7008, 822 N.E.2d 1239, ¶ 103. This proposition is
overruled.
                Constitutional Challenges to Death Penalty Statutes
                   Denial of Jury Sentencing in Guilty-Plea Cases
       {¶ 149} The 13th proposition of law claims that Ohio law denies capital
defendants who plead guilty their constitutional right to a jury determination of
whether the aggravating circumstance outweigh the mitigating factors. In this case,
however, Sowell did not plead guilty but rather was tried by jury. Thus, he has no
standing to raise the issue of what he would have been entitled to had he elected to
plead guilty.
       {¶ 150} He further claims that Crim.R. 11(C)(3) unconstitutionally
penalizes a capital defendant’s exercise of his right to a jury trial. But we have
rejected similar attacks on Crim.R. 11(C)(3). See, e.g., State v. McKnight, 107 Ohio
St.3d 101, 2005-Ohio-6046, 837 N.E.2d 315, ¶ 51, citing State v. Dickerson, 45
Ohio St.3d 206, 214, 543 N.E.2d 1250 (1989), and State v. Buell, 22 Ohio St.3d
124, 138, 489 N.E.2d 795 (1986). Therefore, this proposition is overruled.
                                   Settled Issues
       {¶ 151} “The proportionality review required by R.C. 2929.05(A) is
satisfied by a review of those cases already decided by the reviewing court in which
the death penalty has been imposed.” State v. Steffen, 31 Ohio St.3d 111, 509
N.E.2d 383 (1987), paragraph one of the syllabus. In his 15th proposition, Sowell
asks this court to reconsider Steffen’s interpretation of R.C. 2929.05(A) with respect
to the scope of proportionality review. But he offers no persuasive reason for us to
do so, and we decline his invitation. Sowell also argues that Ohio’s death-penalty




                                         42
                               January Term, 2016




scheme provides constitutionally inadequate appellate review of the proportionality
of the death sentence. We reject this claim. See Steffen at 123, citing Pulley v.
Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984); State v. LaMar, 95 Ohio
St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 23.
       {¶ 152} In the 18th proposition of law, Sowell claims that the death penalty
and Ohio’s statutory provisions for its administration are unconstitutional and
violate international law. Having already rejected each of those claims in prior
cases, we summarily overrule his 18th proposition of law. See generally Spisak, 36
Ohio St.3d at 82, 521 N.E.2d 800; State v. Poindexter, 36 Ohio St.3d 1, 520 N.E.2d
568 (1988), syllabus.
                         Independent Sentence Review
       {¶ 153} Sowell was sentenced to death on 11 counts of aggravated murder.
A sentence of death can be affirmed only if we find beyond a reasonable doubt that
the aggravating circumstances he was found guilty of committing outweigh the
mitigating factors. R.C. 2929.05(A). In his seventh proposition of law, Sowell
contends that on independent review, this court should find that the aggravating
circumstances do not outweigh the mitigating factors beyond a reasonable doubt
for any of the 11 aggravated murders he committed.
                           Aggravating Circumstances
       {¶ 154} R.C. 2929.04 describes the death-penalty specifications to be
included in an indictment and provides:


               (A) Imposition of the death penalty for aggravated murder is
       precluded unless one or more of the following is specified in the
       indictment or count in the indictment pursuant to section 2941.14 of
       the Revised Code and proved beyond a reasonable doubt:
               ***




                                          43
                             SUPREME COURT OF OHIO




               (5) Prior to the offense at bar, the offender was convicted of
       an offense an essential element of which was the purposeful killing
       of or attempt to kill another, or the offense at bar was part of a course
       of conduct involving the purposeful killing of or attempt to kill two
       or more persons by the offender.
               ***
               (7) The offense was committed while the offender was
       committing, attempting to commit, or fleeing immediately after
       committing or attempting to commit kidnapping, rape, aggravated
       arson, aggravated robbery, or aggravated burglary, and either the
       offender was the principal offender in the commission of the
       aggravated murder or, if not the principal offender, committed the
       aggravated murder with prior calculation and design.


       {¶ 155} The jury returned verdicts finding Sowell guilty of 13 course-of-
conduct specifications for each victim, R.C. 2929.04(A)(5). With respect to ten of
the aggravated murders, the jury also found him guilty of two felony-murder
specifications under R.C. 2929.04(A)(7): one predicated on kidnapping under R.C.
2905.01(A)(3) (having a purpose to terrorize or to inflict serious physical harm)
and one predicated on kidnapping under R.C. 2905.01(A)(4) (having a purpose to
engage in sexual activity with the victim against the victim’s will). And on each of
the felony-murder specifications, the jury further found that Sowell was either the
principal offender or had acted with prior calculation and design.
       {¶ 156} Before submitting the case to the jury at the penalty phase, the trial
court merged the 13 course-of-conduct specifications into a single one for each
aggravated murder. The court further merged the two kidnapping specifications
into a single one for each of the ten aggravated murders to which they applied.
Accordingly, this court has two aggravating circumstances to weigh against the




                                          44
                                January Term, 2016




mitigating factors for the murders of Carmichael, Cobbs, Culver, Dozier, Fortson,
Hunter, Mason, Smith, Turner, and Webb—i.e., course-of-conduct and felony-
murder specifications.
       {¶ 157} The felony-murder specifications for Leshanda Long’s murder
were dismissed under Crim.R. 29. Hence, only the course-of-conduct aggravating
circumstance remains to be weighed against the mitigating factors for that murder.
       {¶ 158} The overwhelming evidence presented at trial supports the jury’s
findings that these aggravating circumstances existed.
                                Mitigating Factors
       {¶ 159} We are required to determine whether the aggravating
circumstances proven in this case outweigh the mitigating factors beyond a
reasonable doubt. In doing so, we consider whether there is anything mitigating
about the “nature and circumstances of the offense, [or] the history, character, and
background of the offender,” R.C. 2929.04(B), as well as the following specific
mitigating factors: R.C. 2929.04(B)(1) (victim inducement), (B)(2) (duress,
coercion, or strong provocation), (B)(3) (mental disease or defect), (B)(4) (youth of
the offender), (B)(5) (lack of a significant criminal record), (B)(6) (accomplice
only), and (B)(7) (any other relevant factors).
       {¶ 160} Sowell was born in Cleveland in 1959. In the 1960s, his parents
divorced, and he was raised by his mother, Claudia Garrison. Also living with
Claudia were her mother, Irene Justice, and Sowell’s siblings Tressa Garrison and
Owen “Junior” Davis. Sowell’s sister, Patricia Davis Hatcher, died in 1969, and
Claudia took in Patricia’s children, Robin, Ramona, Leona, and Monica Davis and
Pearl, Jesse Darnel, and Nate Hatcher.
       {¶ 161} Ramona and Leona Davis testified that they and Monica were
subjected to regular, severe abuse while living with Claudia. If one of the children
did something wrong, Claudia would strip the child naked, tie her to a bannister,
and beat her with an extension cord until Claudia was tired or Irene would beat the




                                         45
                              SUPREME COURT OF OHIO




child with a switch or cane. A beating might take place at any time, including at
2:00 or 3:00 a.m., and sometimes for a petty reason such as a dirty dish being left
in the sink. Jesse testified that Claudia gave him similar beatings that were
administered almost daily and were at times severe enough to draw blood.
       {¶ 162} According to the Davis children, Claudia never subjected her own
children to these beatings. However, the other children, including Sowell, observed
the beatings. At times, Jesse testified, Sowell “sat there and laughed.”
       {¶ 163} Leona Davis also testified that when she was ten years old, Sowell
(who was then about 11) raped her almost every day.
       {¶ 164} Sowell attended Prospect Elementary School and Kirk Junior High
in East Cleveland. His teachers during spring 1971 and 1972-1973 testified that he
was an “average” or “unexceptional” student, sometimes enthusiastic, with a good
or near-perfect attendance record. Neither teacher observed any indication that he
had been physically abused.
       {¶ 165} Lori James-Townes, a social worker and Director of Social Work
for the Maryland Public Defender’s office who also has a private forensic practice,
investigated and testified about Sowell’s family history. She found that Sowell had
been subjected to emotional abuse, including witnessing the other children being
beaten and being told by his mother that he would never amount to anything.
Moreover, Claudia told James-Townes that she had awakened him and beaten him
with a cord on one occasion.
       {¶ 166} James-Townes testified that Sowell told her that he had been
sexually molested during his childhood, but she found no evidence to corroborate
this. However, she testified that Sowell’s molestation of Leona Davis was a “red
flag that something’s going on in the house.”
       {¶ 167} In 1978, Sowell entered active duty in the Marine Corps and served
until 1985. Walter C. Bansley, a criminal attorney and former Marine officer and




                                         46
                                January Term, 2016




Judge Advocate, reviewed Sowell’s military records and rendered his expert
opinion as to what they revealed about Sowell.
        {¶ 168} When Sowell graduated from boot camp, he was immediately
promoted to private first class, the only Marine in his 55-member platoon to receive
this “extreme distinction.” He was awarded two Good Conduct Medals, each
reflecting three years of service without disciplinary action, and received additional
awards for good performance. He was promoted successively to lance corporal,
corporal, and sergeant. He was chosen to attend an advanced electrician’s school;
according to Bansley, only 30 percent of Marines in any given military occupational
specialty are chosen for an advanced school.
        {¶ 169} During his Marine career, Sowell was involved in what Bansley
described as two minor disciplinary matters. Both times, he received “nonjudicial
punishment” rather than a court-martial; according to Bansley, this indicates that
Sowell’s superiors thought he had potential and did not consider the incidents
significant.   Despite these incidents, Sowell’s conduct marks exceeded the
requirement for an honorable discharge, which he received in 1985. In Bansley’s
opinion, Sowell was an “above average” Marine.
        {¶ 170} In 1990, Sowell was convicted of attempted rape, and he served 15
years in prison. Roosevelt Lloyd, a convicted rapist, served ten years with him at
Grafton Correctional Institution, working alongside him and sharing a cubicle with
him for seven years. Lloyd described Sowell as “a nice, loving, caring person.”
Lloyd said he had been “in shock” when he learned what Sowell had done. Lloyd
expressed strong loyalty to Sowell: “I love that man * * * and he will always be my
friend. * * * I want to be by his side regardless of what happens * * *.”
        {¶ 171} In prison, Sowell was a food handler, which Lloyd described as “a
very responsible position.” It was his responsibility to make sure that each of
Grafton’s estimated 1,400 to 1,600 inmates had a meal at mealtimes. This involved




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supervising cooks, keeping track of the number of meals served, and ensuring that
the portions were correct.
         {¶ 172} Soon after his release in 2005, Sowell enrolled in a program called
“Towards Employment” offered in part to help place ex-offenders in jobs, and he
took a job-readiness workshop. Deborah Lucci, who helped place Sowell in a job,
testified that he was neat, clean, and punctual, had good attendance, and “presented
himself as job ready.” Towards Employment helped Sowell find a job operating
an injection-mold machine at a Cleveland business that manufactured rubber
products. A former coworker testified that he performed well.
         {¶ 173} In February 2007, Sowell suffered a heart attack and was
hospitalized. Eventually he returned to work. He was initially put on light duty,
then was released to return to full duty. However, by July 2007 he was physically
unable to perform his duties and had to leave his job.
         {¶ 174} Four officers from the Cuyahoga County Jail testified that Sowell
was well-behaved during his pretrial incarceration. Indeed, two described him as a
“model inmate.”
         {¶ 175} Dr. Dale Watson, a clinical and forensic neuropsychologist,
testified on behalf of Sowell.         He performed a comprehensive set of
neuropsychological evaluations on Sowell, administering between 45 and 50 tests,
including tests designed to detect malingering, over three sessions totaling 19
hours.
         {¶ 176} Dr. Watson concluded that Sowell showed “probably * * * a
moderate degree of [brain] dysfunction or impairment.” Dr. Watson concluded that
Sowell had “had some sort of neurological event that affected his processing
speed.” He noted that “a heart attack where there’s not adequate oxygenation”
could “impact brain function.” Dr. Watson further concluded that Sowell’s results
did not indicate malingering.




                                         48
                                January Term, 2016




       {¶ 177} Dr. Watson testified that Sowell claimed that after his heart attack,
he had auditory hallucinations. Specifically, Sowell reported hearing a voice,
which he called “Arnie.” However, when Dr. Watson raised this subject again,
Sowell denied having had such hallucinations. Dr. Watson believed Sowell’s initial
claim and questioned his later denial.
       {¶ 178} Dr. Diana Goldstein, a neuropsychologist who testified on behalf
of the state, examined Sowell’s medical records and reached conclusions that
differed sharply from Dr. Watson’s. Dr. Goldstein found nothing in Sowell’s
medical records to support a history of cognitive or psychiatric disorder, before or
after Sowell’s heart attack.
       {¶ 179} She noted that Sowell’s doctors had not requested neurodiagnostic
testing on him after the heart attack, which would have been called for if he had
had the type of heart attack that leads to respiratory failure. She also noted that, in
the emergency room, Sowell’s Glasgow coma scale score was a maximum 15,
which indicates that there was no brain injury, and that his oxygen-saturation levels
when he arrived at the emergency room were 96 percent. She stated that “all of
that indicates that there was not a neurologic event” that would have compromised
Sowell’s brain functioning.
       {¶ 180} Dr. Goldstein also reviewed Dr. Watson’s report. She concluded
that in all cognitive domains, Sowell’s testing indicated normal functioning. There
was a minority of “abnormal” test findings that she said were “difficult to explain,
given how well he does on all of the other tests that measure the exact same thing.”
Since there was no evidence that Sowell was undergoing a “medical crisis” at the
time Dr. Watson was testing him, Dr. Goldstein concluded that “fluctuations in
effort” explained the anomalous results. Dr. Goldstein testified that this did not
necessarily mean that Sowell malingered, but she could not rule out malingering.
       {¶ 181} Dr. George Woods, a neuropsychiatrist, interviewed Sowell three
times for a total of about six or seven hours and testified that Sowell lacked the




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substantial capacity to conform his conduct to the requirements of the law. Dr.
Woods diagnosed Sowell with the following conditions: (1) obsessive-compulsive
disorder (“OCD”), which Dr. Woods described as severe, chronic, and sexual in
nature; (2) posttraumatic stress disorder (“PTSD”) essentially consisting of two
types, one resulting from “type-two trauma,” a “chronic ongoing trauma” such as
would result from “ongoing childhood abuse” and another from “type-one trauma,”
a single traumatic event such as a heart attack; (3) psychosis not otherwise
specified; and (4) cognitive disorder not otherwise specified.
        {¶ 182} Dr. Woods explained that childhood abuse causes anxiety, which
leads to compulsive behavior stemming from a desire to control that anxiety. He
described an obsessive-compulsive “cycle”: obsessive thoughts lead to anxiety;
anxiety leads to attempts to control the anxiety by means of compulsive behavior;
compulsive behavior brings temporary relief, but then the anxiety returns. For
OCD sufferers, “control is everything”; if the sufferer loses control, “the response
is completely out of proportion to the stimulus.” A structured setting helps the
OCD sufferer control his compulsions, by reducing anxiety.
        {¶ 183} Dr. Woods testified that Sowell performed well in the structured
setting of the military; in civilian life after his discharge, he worked for a time, then
his obsessions got the better of him and he was convicted of attempted rape. He
then performed well in the structured environment of prison. After Sowell’s release
from prison, his work provided structure, and he was successful at his job, but after
his heart attack, he lost his job. This removed the structure that, according to Dr.
Woods, helped him control his obsessions. Depression impaired his ability to think.
        {¶ 184} Dr. Woods also observed that OCD and PTSD “augment each
other,” creating “both atypical and more severe symptoms” than if only one
disorder is present. PTSD can cause dysregulation, which is a tendency to overreact
or underreact; Sowell’s tendency was to overreact. If one is dysregulated and at the




                                           50
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same time is attempting to control anxiety, the resulting compulsive behavior can
be “very terrible.”
       {¶ 185} Dr. James Knoll IV testified for the state in rebuttal. He is a full-
time practicing psychiatrist and forensic psychiatrist who has studied and published
on the subject of serial murder.         He strongly disagreed with Dr. Woods’s
conclusions.
       {¶ 186} Dr. Knoll noted that a 2005 report prepared by the Cuyahoga
County Court Psychiatric Clinic showed an absence of significant psychiatric
illness in Sowell’s life. Moreover, county jail records that he reviewed indicated
that antipsychotic medications had not been prescribed for Sowell during his two-
year pretrial incarceration.
       {¶ 187} Dr. Knoll also noted that Sowell had not been diagnosed with OCD
while in the Marines.          “A true diagnosis of genuine significant obsessive-
compulsive disorder would quite likely be the end of one’s military career,” he
testified, because OCD would substantially interfere with one’s functioning. Dr.
Knoll also testified that Dr. Woods’s diagnosis of severe, chronic OCD with sexual
obsession was flawed, because “there’s simply no such diagnosis in existence in
psychiatry.”
       {¶ 188} Dr. Knoll believed that Dr. Woods did not adequately consider the
possibility that Sowell was malingering when he reported auditory hallucinations.
To Dr. Knoll, Dr. Woods’s report indicated no effort to “delve into” Sowell’s claim
of hearing voices. In the forensic setting, Dr. Knoll testified, it is “fundamental” to
consider possible malingering, and “failure to do so is a critical error.”
       {¶ 189} Another “serious error” in Dr. Woods’s analysis, according to Dr.
Knoll, was his failure to consider sexual sadism as a diagnosis. Dr. Knoll testified
that sexual sadism is a “paraphilia,” a mental disorder involving sexual deviancy,
in which the sadist is aroused by the fear and suffering of his victim. According to




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Dr. Knoll, sexual sadism, domination and control, and anger toward an “identified
victim pool” are common motivations in serial murders.
       {¶ 190} Dr. Knoll testified that murder by choking or strangulation suggests
sexual sadism, as does the use of bindings or restraints. He further noted that the
testimony of the victims who survived Sowell’s assaults indicates Sowell’s intense
anger at women. Additionally, Sowell had previously committed a “sadistic rape”
in 1989 in which he had bound, gagged, and choked the victim.
       {¶ 191} Dr. Knoll also testified that inability to control conduct is a
“controversial” subject in forensic psychiatry, because there are “no specific
scientific methods to determine that.”
       {¶ 192} Sowell made an unsworn statement in court. Much of it repeated
previous testimony offered on his behalf. He stated that he had been sexually
abused as a child by a female, described life in his childhood home as “like a war”
with “constant yelling and screaming,” and said that he joined the Marines to
“escape.” He concluded by apologizing for his crimes.
       {¶ 193} Sowell contends that the following mitigating factors exist.
       {¶ 194} (1) He is not dangerous while in a structured environment such as
prison. Evidence in the record supports this factor, and we give it modest weight.
See State v. Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, ¶ 303.
       {¶ 195} (2) “Those who have done worse have been allowed to live.” Here
Sowell cites an assortment of notorious murderers from other jurisdictions who did
not receive death sentences and contends that, since they were not sentenced to
death, he should not be either.
       {¶ 196} We reject this argument. The crimes of others cited by Sowell are
wholly unrelated to his character or record or the circumstances of his own crimes.
Hence, those cases do not constitute mitigating factors. See State v. McGuire, 80
Ohio St.3d 390, 403, 686 N.E.2d 1112 (1997) (rejecting residual doubt as
mitigating factor because it is not related to offender’s character or record or the




                                         52
                                January Term, 2016




circumstances of the offense); State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426,
892 N.E.2d 864, ¶ 124 (for the same reason, impact of offender’s execution on his
family is not a mitigating factor).
       {¶ 197} (3) Sowell “tried to accept responsibility” by offering to plead
guilty in exchange for a life sentence without the possibility of parole. As we note
in our discussion of Sowell’s eighth proposition of law, Sowell’s plea offer is not a
mitigating factor. Dixon, 101 Ohio St.3d 328, 2004-Ohio-1585, 805 N.E.2d 1042,
at ¶ 69 (“a defendant’s offer to plead guilty, never accepted by the prosecutor, is
not relevant to the issue of whether the defendant should be sentenced to death”).
       {¶ 198} (4) Sowell’s allegedly chaotic and abusive family background.
This court has “ ‘seldom given decisive weight to’ a defendant’s unstable or
troubled childhood.” State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920
N.E.2d 104, ¶ 245, quoting Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d
864, at ¶ 265. It deserves nominal weight here.
       {¶ 199} (5) His work record and honorable military service. These “are
entitled to some weight as mitigating factors.” State v. D’Ambrosio, 73 Ohio St.3d
141, 146, 652 N.E.2d 710 (1995); see also Neyland, 139 Ohio St.3d 353, 2014-
Ohio-1914, 12 N.E.3d 1112, at ¶ 302.
       {¶ 200} (6) The murders in this case were not “planned and calculated,” as
is allegedly shown by his supposedly impulsive assault on Shawn Morris.
However, Sowell was convicted of committing these murders with prior calculation
and design, and the record supports that finding. This factor, therefore, deserves
no weight.
       {¶ 201} (7) His alleged OCD, psychosis, and other mental problems. In
view of the conflicting expert testimony on this subject, we give it little weight.
       {¶ 202} The aggravating circumstances in this case are entitled to
significant weight. The mitigating factors that are present, however, are entitled to
modest, nominal, some, and little weight, respectively. We conclude that as to each




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of the 11 murders in this case, the aggravating circumstances outweigh the
mitigating factors beyond a reasonable doubt.
         {¶ 203} Finally, we also conclude that the death sentences in this case are
appropriate and proportionate when compared with similar capital cases. See
Lundgren, 73 Ohio St.3d at 496, 653 N.E.2d 304; State v. Brown, 38 Ohio St.3d
305, 321, 528 N.E.2d 523 (1988).
         {¶ 204} Accordingly, we affirm Sowell’s convictions and sentences of
death.
                                                                   Judgment affirmed.
         PFEIFER, LANZINGER, KENNEDY, and FRENCH, JJ., concur.
         O’CONNOR, C.J., dissents, with an opinion.
         O’NEILL, J., dissents, with an opinion joined in part by O’CONNOR, C.J.
                                 _________________
         O’CONNOR, C.J., dissenting.
         {¶ 205} I join the dissenting opinion of Justice O’Neill to the extent that he
would find structural error and remand this case to the trial court for a new
suppression hearing that is either public or is closed after making the findings
required by Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984).
I do not join the dissenting opinion, however, to the extent that it states that capital
punishment is unconstitutional.
                                 _________________
         O’NEILL, J., dissenting.
         {¶ 206} Respectfully, I dissent.
         {¶ 207} In addition to my belief that capital punishment is unconstitutional,
see State v. Wogenstahl, 134 Ohio St.3d 1437, 2013-Ohio-164, 981 N.E.2d 900,
¶ 2 (O’Neill, J., dissenting), I dissent from the majority’s decision in this case that
closure of the courtroom during Anthony Sowell’s suppression hearing was not a
material error and that the error therefore can be ignored.




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                                  January Term, 2016




        {¶ 208} In cases such as this that involve unspeakable horror and
overwhelming evidence of guilt, it is tempting to overlook procedural safeguards
and skip to the end. However in a criminal-justice system governed by the rule of
law, a serial murderer’s trial is subject to the same constitutional protections as the
trial of a low-level thief. Just as there is no question that closed suppression
hearings may sometimes be necessary, there is also no question that the necessity
must be explained. The majority correctly identifies the issue and the law regarding
the closure of Sowell’s suppression hearing. However, by failing to remand this
case to the trial court for a new suppression hearing that is either public or is closed
only after the findings required by Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210,
81 L.Ed.2d 31 (1984) are made, this court has perpetuated rather than resolved a
structural defect in this case.
        {¶ 209} A structural defect can invalidate the result of a suppression hearing
or a conviction even though there may be no reasonable doubt that the defendant is
guilty and would have been convicted if the defect had not been present. Waller at
49; accord Arizona v. Fulminante, 499 U.S. 279, 309-310, 111 S.Ct. 1246, 113
L.Ed.2d 302 (1991). Structural defects include violations of the right to counsel at
trial, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); the
right to an impartial judge, Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed.
749 (1927); the prohibition of the unlawful exclusion of members of the
defendant’s race from a grand jury, Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct.
617, 88 L.Ed.2d 598 (1986); the right to self-representation at trial, McKaskle v.
Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984); and the right to a
public trial, Waller at 49, Fulminante at 310. The underlying principles are that
“ ‘[w]ithout these basic protections, a criminal trial cannot reliably serve its
function as a vehicle for determination of guilt or innocence’ ” and that the criminal
punishment cannot “ ‘be regarded as fundamentally fair.’ ” Id., quoting Rose v.
Clark, 478 U.S. 570, 577-578, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986).




                                          55
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        {¶ 210} The requirement of a public trial is for the benefit of the accused
and the public. Waller at 46. It is so the public can see that the defendant is treated
fairly and is not unjustly condemned. Id. I cannot stress strongly enough that the
right to a fair, public trial belongs both to the accused and to the citizens of Ohio
with equal value. They both need to have confidence in the ultimate outcome. It
also serves to make those trying an accused keenly aware of their responsibility and
of the importance of their task. Id.
        {¶ 211} In Waller, the Supreme Court of the United States held that the right
to a public trial extends to suppression hearings. Id. at 46-47. The high court has
been clear, however, that the right to an open suppression hearing may give way to
other interests, such as the government’s interest in shielding disclosure of sensitive
information or the defendant’s right to a fair trial. Id. at 45. In such circumstances,
any closure of a suppression hearing over the objection of the defendant must be
supported by trial-court findings that the closure is essential to preserve higher
values and that the closure is narrowly tailored to serve an overriding interest. Id.
Importantly the Supreme Court requires a trial court to articulate the interest at stake
along with the findings specifically enough that a reviewing court can determine
whether the closure order was properly entered. Id. If these findings were not
made, the remedy is a new suppression hearing. Id. at 49-50. Here, as the majority
observes, the trial court identified the overriding interest at stake—the sensitive
nature of the evidence and potential prejudice to the jury pool. However, as the
majority also observes, the trial court failed to make the findings required under
Waller to justify closing the courtroom.
        {¶ 212} The majority’s conclusion that a new suppression hearing is needed
only if it would result in a material change in the positions of the parties is incorrect.
Reliance on State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150,
¶ 87, to support this conclusion is misplaced at best. The closed proceeding in
Bethel was not a suppression hearing regarding statements made to the police. The




                                           56
                                January Term, 2016




purpose of the closed hearing in Bethel was to explain to Bethel the consequences
of his guilty plea. Id. at ¶ 86. Significantly, Bethel withdrew his guilty plea and
opted to go to trial. Id.
        {¶ 213} Requiring a defendant to show a material change in the positions of
the parties in order to secure the defendant’s constitutional right to a public
suppression hearing is the same as requiring a defendant to demonstrate prejudice.
The United States Supreme Court’s holding in Waller is clear: the closure of a
suppression hearing without making the findings justifying closure is structural
error. Waller, 467 U.S. at 49, 104 S.Ct. 2210, 81 L.Ed.2d 31. The remedy for this
structural error is a new suppression hearing. Id. at 49-50. If, after the new
suppression hearing, there is no material change in the positions of the parties or
the same evidence is suppressed, then a new trial is not in the public interest. Id. at
50. It is only after the new suppression hearing is held that an examination of the
positions of the parties becomes relevant or even possible.
        {¶ 214} The overwhelming evidence of Sowell’s guilt cannot cure this
defect. A structural error permeates the proceeding such that the proceeding cannot
“ ‘ “reliably serve its function as a vehicle for determination of guilt or innocence.”
’ ” State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 17,
quoting Fulminante, 499 U.S. at 310, 111 S.Ct. 1246, 113 L.Ed.2d 302, quoting
Rose, 478 U.S. at 577-578, 106 S.Ct. 3101, 92 L.Ed.2d 460. This court simply
cannot choose to ignore the rulings of the United States Supreme Court on this
issue. Cooper v. Aaron, 358 U.S. 1, 17-18, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958); State
v. Burnett, 93 Ohio St.3d 419, 422, 755 N.E.2d 857 (2001) (state courts must follow
decisions of the United States Supreme Court on questions of federal constitutional
law). Accordingly, this case should be remanded to the trial court for a new
suppression hearing that either is public or includes trial-court findings justifying
closure.
        {¶ 215} I dissent.




                                          57
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                              _________________
       Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and
Christopher D. Schroeder and T. Allan Regas, Assistant Prosecuting Attorneys, for
appellee.
       Gamso, Helmick & Hoolahan and Jeffrey M. Gamso; and Robert L. Tobik,
Cuyahoga County Public Defender, and Erika Cunliffe, Assistant Public Defender,
for appellant.
       Freda J. Levenson, urging reversal for amicus curiae, American Civil
Liberties Union.
                              _________________




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