IN THE SUPREME COURT OF OHIO
STATE OF OHIO,
Appellee, Case No. 2001-1518
-vs- On Appeal from Montgomery County Common Pleas Case No. 00 CR 2945 LARRY JAMES GAPEN, THIS IS A DEATH PENALTY CASE Appellant.
APPLICATION FOR REOPENING PURSUANT TO S.CT. PRAC.R. XI(6)
William Lazarow - 0014625 Mathias H. Heck, Jr. 400 S. Fifth Street, Suite 301 Prosecuting Attorney Columbus, Ohio 43215-5430 (614) 228-9058 Kristen A. Brandt - 0070162 (614) 221-8601 (fax) Assistant Prosecuting Attorney Montgomery County Prosecutor's Office 301 West Third Street - 5u' Floor P.O. Box 972 Dayton, Ohio 45422 (937) 225-4117
COUNSEL FOR APPELLANT COUNSEL FOR APPELLEE
JAN'1fi?(?19I;V CLERH oF COURT SUPREME COURT OFON1p IN THE SUPREME COURT OF OHIO
STATE OF OHIO,
Appellee, Case No. 2001-1518
-vs- On Appeal from Montgomery County Common Pleas Case No. 00 CR 2945 LARRY JAMES GAPEN, THIS IS A DEATH PENALTY CASE Appellant.
APPLICATION FOR REOPENING PURSUANT TO S.CT. PRAC.R. XI(6)
Now comes Larry James Gapen, by and through counsel, and moves this Court to reopen his direct appeal pursuant to Supreme Court of Ohio Rule of Practice XI(6) ("Rule X1(6)"). Under the familiar two-prong test delineated in Strickland v. Washington, 466 U.S. 668, 687 (1984), Gapen received constitutionally ineffective representation when his appellate counsels' performance fell far below the prevailing professional norms for appellate counsel in capital cases, and Gapen was prejudiced by counsels' failures. Critically, prior appellate counsel failed "to lifigate all issues, whether or not previously presented, that are arguably meritorious under the standards of applicable high quality capital defense representation...[and] to present issues in a manner that will preserve them for subsequent review." ABA Guidelines 10.15.1.C. See ABA Guidelines for the
Appointment and Performance of Defense Counsel in Death Penalty Cases (rev. ed. 2003) (as reprinted in 31 Hofstra L. Rev. 913, 2003) (the "ABA Guidelines").
The Supreme Court of the United States and the U.S. Sixth Circuit Court of Appeals have recognized the ABA Guidelines as establishing the relevant criteria of what counsel must do in a capital case to satisfy the Sixth Amendment's effective assistance of counsel requirement. See
Rompilla v. Beard, 545 U.S. 374, 387 & n.7 (2005) (considering the ABA Guidelines' requirements
2 in context of conducting ineffective assistance of counsel analysis from Strickland); Wiggins v.
Smith, 539 U.S. 510, 524-33 (2003) (describing the ABA Guidelines as "standards to which we have long referred as `guides to determining what is reasonable"' and then applying Strickland analysis);
Williams v. Taylor, 529 U.S. 362 (2000) (same); Hamblin v. Mitchell, 354 F.3d 482,485-88 (6th Cir.
2003) (explaining that "the Wiggins case now stands for the proposition that the ABA standards for counsel in death penalty cases provide the guiding rules and standards to be used in defining the
`prevailing professional norms' in ineffective assistance cases," id. at 486). See also Johnson v.
Bagley, 544 F.3d 592, 2008 U.S. App. LEXIS 21200, * 15 (6th Cir. Oct. 10, 2008) (citing Rompilla,
545 U.S. at 387 & n.7).
In Hamblin, the Sixth Circuit explained that "the ABA standards are not aspirational in the sense that they represent norms newly discovered after Strickland. They are the same type of longstanding norms referred to in Strickland in 1984 as `prevailing professional norms' as `guided' by `American Bar Association standards and the like."' Hamblin,. 354 F.3d at 487. The court reasoned that "we see no reason to apply to counsels' performance here standards different from those adopted by the Supreme Court in Wiggins and consistently followed by our court in the past."
Id.
Demonstrating ineffective assistance of appellate counsel requires showing that "the issue not presented was clearly stronger than issues that counsel did present." Franklin v. Anderson, 434 F.3d
412, 429 (6th Cir. 2006) (quoting Caver v. Straub, 349 F.3d 340, 348 (6th Cir. 2003) (quoting Smith v. Robbins, 528 U.S. 259, 289 (2000) (internal citations omitted))). In determining whether appellate counsel's performance was deficient under Strickland's first prong, the Sixth Circuit has set out a non-exhaustive list of eleven factors to be reviewed. Mapes v. Coyle, 171 F. 3d 408, 427-28 (6th
Cir. 1999). The Sixth Circuit recently made clear that the Mapes factors are to be considered in
3 addition to the "prevailing norms of practice as reflected in the [ABA Guidelines] and the like."
Franklin, 434 F.3d at 429. If after a review of these and other factors, it appears to the court that the omitted claims are so "significant and obvious" that a competent capital appellate attorney "would ahnost certainly present [them] on appeal, "the deficient performance prong under Strickland is established, and a review of the merits of the omitted claims to establish prejudice is required."
Greer v. Mitchell, 264 F.3d 663, 679 (6th Cir. 2001)). See also, Franklin, 434 F.3d at 430-31
(finding that appellate "counsel did not meet the ABA standards in their dealings with [defendant] concerning his appeals.").
To demonstrate prejudice under the second Strickland prong, a defendant must show that
"there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 at 694. Here, Gapen was denied the effective assistance of appellate counsel as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth
Amendments of the federal Constitution and Article I,§§ 2, 9, 10, and 16 of the Ohio Constitution when his appellate counsel failed to include certain critical claims in Gapen's direct appeal. Gapen was prejudiced because the claims appellate counsel failed to raise were strong claims, including a
Batson claim, claims involving the jury's consideration of an invalid aggravator and the jury's consideration of improper evidence submitted to support the invalid aggravator, as well as strong ineffective assistance of counsel claims related to jury selection. See Franklin, 434 F.3d at 430-31
(holding that failure to raise strong claim on appeal was prejudice under Strickland). Appellate counsel also prejudiced Gapen by failing to comply with the applicable ABA Guidelines, as discussed above. Id. In the absence of appellate counsels' failures, these claims would have been considered and it is likely that the trial court's and trial counsels' failures would have compelled a different result on sentencing. Appellant is unable to fully brief these errors due to page limit
4 constraints;' thus this application is not presented in lieu of full briefing on the facts and law. To demonstrate that this Court should reopen his appeal and permit full briefing on the omitted claims, however, Gapen shall hereafter demonstrate "colorable claim[s] of ineffective assistance of appellate counsel." State v. Murnahan, 63 Ohio St.3d 60, 66 (1992) (emphasis added); S. Ct. R. Prac. XI(6).
1. Procedural Posture and Showing of Good Cause
The Ohio Public Defender's Office was appointed to represent Gapen on his sole appeal of right to this Court. The attorneys assigned to his case were Assistant Public Defenders Stephen
Ferrell, Jane Perry, and Robert Lowe. This Court affirmed Gapen's conviction and death sentence in an opinion dated December 15, 2004. State v. Gapen, 104 Ohio St.3d 358, 358, 2004-Ohio-6548,
P1 (2004). The Court, however, reversed Gapen's convictions for breaking detention and the R.C.
2929.04(A)(4) specifications that allege murder in the course ofbreaking detention. Id. This Court's judgment entry was journalized on February 16,2005. At no time did appellate counsel ever inform
Gapen that he had a right to file an Application to Reopen his direct appeal. Ohio law allows a capital defendant to file an application to reopen his or her direct appeal pursuant to Rule XI(6) based on a claim of ineffective assistance of appellate counsel. Rule XI(6) instructs that such motion is to be filed "within 90 days from entry of the judgment of the Supreme Court, unless the appellant shows good cause for filing at a later time." S. Ct. R. Prac. XI(6)(A). This Court should allow consideration of the instant Application to Reopen, because the delay can be excused for good cause, namely the deficient performance of Gapen's previous counsel. Gapen's prior appellate counsel had a duty to inform Gapen of his right to pursue an Application to Reopen pursuant to Rule XI(6). See
'The arbitrary and unreasonable 10 page limit imposed by Rule XI(6)(D) denies Gapen due process and a full and fair opportunity to adequately develop these claims. Therefore, Exhibit A, Affidavit of William Lazarow, contains a fuller exposition of the factual and legal arguments in support of the Propositions of Law, and is herein incorporated by reference in full.
5 ABA Guidelines 10.13,10.15.1.C, .D, and.E (establishing duties of counsel after capital conviction and sentence). Accordingly, when they failed to do so, Gapen's appellate counsels' representation fell below the prevailing professional standards for appellate counsel in a capital case and were deficient as outlined in the ABA Guidelines. Appellate counsels' failure establishes "good cause" to justify the delayed filing of the instant Application?
Moreover, current counsel has acted diligently to file the instant Application as soon as practicable. Upon discovery of appellate counsels' failures, current federal habeas counsel communicated to Gapen his right to pursue additional remedies before the Ohio Supreme Court. At the behest of his federal habeas counsel, Gapen requested that undersigned counsel represent him on his Rule XI(6) Application to Reopen. The instant Application is being filed within thirty (30) days of the Supreme Court of Ohio's appointment of undersigned counsel to represent Gapen for the purpose of this proceeding. Counsel must have a reasonable amount of time to properly research, investigate, prepare and file this Application. McFarland v. Scott, 512 U.S. 849, 855 (1994).3
II. Meritorious Claims in the Record But Not Raised on Appeal
The following Propositions of Law constitute colorable claims for relief based on errors that appear in the trial record. Reasonably competent appellate counsel should have raised the following
Z Additionally, Gapen's appointed post-conviction counsel, also from the Ohio Public Defender's Office, did not file an Application to Reopen, and did not infonn Gapen of his right to pursue an Application to Reopen. This failure - along with the obvious conflict of post-conviction counsel arguing constitutional ineffectiveness of their own office on trial and direct review - also constitutes "good cause" for any delay in filing Gapen's Application to Reopen pursuant to Rule X1(6). Simply put, Gapen was never informed of his right to file an Application to Reopen his direct appeal by any of his previously appointed counsel.
' This Court has routinely reviewed Applications to Reopen when filed within 90 days of the appointment of counsel. See State v. Mack, 101 Ohio St.3d 397 (2004); State v. Brooks, 92 Ohio St.3d 537 (2001); State v. White, 89 Ohio St.3d 1467 (2000); and State v. Getsy, 90 Ohio St.3d 1469 (2000). See also State v. Fox, 83 Ohio St.3d 514, 515 (1998).
6 compelling issues on Gapen's direct appeal, and were constitutionally ineffective for their failure to do so.
PROPOSITION OF LAW NO. I
GAPEN'S JURY IMPROPERLY CONSIDERED AN INVALID AGGRAVATING FACTOR, AS WELL AS PREJUDICIAL EVIDENCE INTRODUCED SOLELY TO SUPPORT THAT INVALID AGGRAVATING FACTOR, THEREBY DEPRIVING H1M OF HIS RIGHT TO A FAIR TRIAL AND SENTENCING PROCEEDING IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, §§ 2, 9, 10 AND 16 OF THE OHIO CONSTITUTION.
A. THE JURY IMPROPERLY CONSIDERED THE INVALID DEATH PENALTY SPECIFICATION OF "MURDER IN THE COURSE OF BREAKING DETENTION."
THE JURY IMPROPERLY CONSIDERED EVIDENCE ADMITTED SOLELY TO SUPPORT AN INVALID AGGRAVATING FACTOR.
This Court reversed Gapen's convictions for breaking detention and the R.C. § 2929.04(A)(4) specification that allege murder in the course ofbreaking detention. State vs. Gapen, 104 Ohio St.3d
358, 358, 2004-Ohio-6548, P1 (2004). Gapen's jury thus considered an invalid specification improperly added to the aggravation side in the weighing process. None of the other sentencing factors permitted the jury to give weight to the facts and circumstances submitted in support of the breaking detention specification. This error affected the jury's sentencing determination in favor of death, in violation of Gapen's rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and Article I, §§ 2, 9, 10 and 16 of the Ohio Constitution. See
Exhibit A, Affidavit of William Lazarow ¶¶ 14-20.
The presence of these invalid sentencing factors also allowed the jury to consider evidence that would not otherwise have been before it, namely the evidence submitted to support the breaking detention specification. The jury heard and considered detailed evidence about the breaking detention specification, the factual background for the specification, and the purported role the specification played in regard to the homicide. None of the other charges or specifications would have allowed consideration of this evidence. This error directly affected the jury's sentencing determination in favor of death, in violation of Gapen's rights under the Fifth, Sixth, Eighth and
Fourteenth Amendments to the United States Constitution, and Article I, §§ 2, 9, 10 and 16,of the
Ohio Constitution. See Exhibit A, Affidavit of William Lazarow ¶¶ 21-25.
PROPOSITION OF LAW NO. II
GAPEN WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN THE VOIR DIRE PHASE OF HIS CAPITAL TRIAL, THEREBY DEPRIVII\TG HIM OF HIS RIGHTS TO DUE PROCESS AND A FAIR AND IMPARTIAL 7URY IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND ARTICLE I, §§ 2,9, 10 AND 16 OF THE OHIO CONSTITUTION.
A. COUNSEL FAILED TO ADEQUATELY VOIR DIRE AND STRIKE - FOR CAUSE OR OTHERWISE - A PROSPECTIVE JUROR WHO WOULD AUTOMATICALLY VOTE FOR DEATH.
B. COUNSEL FAILED TO ADEQUATELY VOIR DIRE AND STRIKE - FOR CAUSE OR OTHERWISE - A JUROR WHO WAS BIASED AND UNABLE TO RENDER A FAIR AND IMPARTIAL VERDICT.
Gapen was denied the effective assistance of counsel and his rights to due process, equal protection, and an impartial and unbiased jury under the federal and state Constitutions when counsel unreasonably failed to review juror questionnaires and conduct effective voir dire. Consequently, trial counsel failed to strike a juror - David Nedostup - who revealed in his questionnaire that he would always favor the death penalty if a defendant was found guilty of murder. This failure denied Gapen his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States
Constitution, and Article I, §§ 2, 9, 10 and 16 of the Ohio Constitution. See Exhibit A, Affidavit of
William Lazarow ¶¶ 26-31.
8 Gapen was also denied the effective assistance of counsel and his rights to due process, equal protection, and an impartial and unbiased jury under the federal and state Constitutions when counsel failed to strike ajuror, Bradley Ivey, who was ultimately empanelled but who was biased and unable to render a fair and impartial verdict in violation of the Fifth, Sixth, Eighth and Fourteenth
Amendments to the United States Constitution, and Article I, §§ 2, 9, 10 and 16 of the Ohio
Constitution. See Exhibit A, Affidavit of William Lazarow ¶¶ 32-39.
PROPOSITION OF LAW NO. III
THE PROSECUTION'S USE OF A PEREMPTORY CHALLENGE TO EXCUSE A PROSPECTIVE JUROR SOLELY ON THE BASIS OF THE JUROR'S RACE DEPRIVED GAPEN OF HIS RIGHT TO A FAIR TRIAI. AND SENTENCING PROCEEDING IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, §§2, 9, 10 AND 16 OF THE OHIO CONSTITUTION.
Gapen was denied his rights to due process and equal protection under the federal and state
Constitutions when the prosecution exercised a peremptory challenge in a racially discriminatory manner in violation of Batson v. Kentucky, 476 U.S. 79 (1986) and its progeny including Snyder v.
Louisiana, 128 S.Ct. 1203, 1212 (2008) and Miller-El v. Dretke, 545 U.S. 231 (2005), and the trial court failed to uphold Gapen's objections thereto. The trial court's rejection of Gapen's Batson challenge denied Gapen his rights as guaranteed by the Fifth, Sixth, Eighth and Fourteenth
Amendments to the United States Constitution, and Article I, §§ 2, 9, 10 and 16 of the Ohio
Constitution. See Exhibit A, Affidavit of William Lazarow ¶¶ 40-47.
III. Demand for Discovery and an Evidentiary Hearing.
Gapen requests full discovery and an evidentiary hearing on these claims in order to properly and fully litigate these claims. Morgan v. Eads, 2004 Ohio 6110 (2004). In Morgan this Court
abandoned the clear holding of prior cases that the taking of new evidence is not permitted in
9 Murnahan proceedings. State v. Burke, 97 Ohio St.3d 55 (2002); State v. Hooks, 92 Ohio St.3d 83
(2001); State v. Moore, 93 Ohio St.3d 649 (2001). Therefore, Gapen hereby demands this newly
created right to conduct discovery in support of his claims and to have an evidentiary hearing on this
matter. The failure to provide discovery and hearing will deny Gapen a full and fair opportunity to
litigate his claims and deny him due process of law.
IV. Conclusion.
For the above state reasons, Gapen requests this Court grant his application for reopening and
reopen his direct appeal to this Court. Further, the Court must permit discovery and conduct an
evidentiary hearing on the claims raised in this Application.
lliam Lazaro 400 S. Fifth Stre Columbus, Ohi^ 4321 545430 (614) 228-905 (614) 221-8601
Counsel for Larry James Gapen
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing APPLICATION FOR REOPENING
PURSUANT TO S.CT. PRAC.R. XI(6) was forwarded by regular U.S. Mail to Mathias H. Heck, Jr.,
Prosecuting Attorney, and Kristen A. Brandt, Assistant Prosecuting Attorney, Montgomery County
Prosecutor's Office, Appellate Division, P.O. Box 972, Dayton, Ohio 45422 on the eday of
January, 2009. Exhibit A
IN THE SUPREME COURT OF OHIO
STATE OF OHIO,
Appellee, Case No. 2001-1518
-vs- On Appeal from Montgomery County Conunon Pleas Case No. 00 CR 2945 LARRY JAMES GAPEN, THIS IS A DEATH PENALTY CASE Appellant.
AFFIDAVIT OF WILLIAM S. LAZAROW
STATE OF OHIO ) ) ss: COUNTY OF FRANKLIN )
I, William S. Lazarow, after being duly sworn, hereby state as follows:
1) 1 am an attorney licensed to practice law in the state of Ohio since 1972,
and am currently engaged in the private practice of law in Columbus, Ohio. I was an
Assistant State Public Defender in Ohio from 1989 to 2001 where I was assigned to the
Death Penalty Unit. I was also a Deputy Federal Public Defender in the Capital Habeas
Units in the Central District of California and District of Arizona from 2002 to 2006. My
primary area of practice is capital litigation. I am certified under Sup. R. 20 as appellate
counsel and trial co-counsel in capital cases.
2) Due to my focused practice of law and my attendance at death-penalty
seminars, I am aware of the standards of practice involved in the appeal of a case in
which the death sentence was imposed or recommended. 3) The Due Process Clause of the Fourteenth Amendment guarantees effective assistance of counsel on an appeal as of right. Evitts v. Lucey, 469 U.S. 587
(1985).
4) The initial responsibility of appellate counsel, once the transcript is filed, is to ensure that the entire record has been filed with this Court. Appellate counsel has a fundamental duty in every criminal case to ensure that the entire record is before the reviewing courts on appeal. Ohio R. App. P. 9(B); Ohio Rev. Code Ann. § 2929.05
(Anderson 1995); State ex rel. Spirko v. Judges of the Court of Appeals, Third Appellate
District, 27 Ohio St. 3d 13, 501 N.E. 2d 625 (1986).
5) After ensuring that the transcript is complete, counsel must then review the record for purposes of issue identification. This review of the record not only includes the transcript, but also the pleadings and exhibits.
6) For counsel to properly identify issues, they must have a good knowledge of criminal law in general. Most trial issues in capital cases will be decided by criminal law that is applicable to non-capital cases. As a result, appellate counsel must be informed about the recent developments in criminal law when identifying potential issues to raise on appeal. Counsel must remain knowledgeable about recent developments in the law after the merit brief is filed.
7) Since the reintroduction of capital punishment in response to the Supreme
Court's decision in Furman v. Georgia, 408 U.S. 238 (1972), the area of capital litigation has become a recognized specialty in the practice of criminal law. Numerous substantive and procedural areas unique to capital litigation have been carved out by the United
States Supreme Court. As a result, anyone who litigates in the area of capital punishment must be familiar with these issues in order to raise and preserve them for appellate and post-conviction review.
8) Appellate representation of a death-sentenced client requires recognizing that the case will most likely proceed to the federal courts at least twice: first on petition for Writ of Certiorari in the United States Supreme Court, and again on petition for Writ of Habeas Corpus filed in a federal district court. Appellate counsel must preserve all issues throughout the state court proceedings on the assumption that relief is likely to be
sought in federal court. The issues that must be preserved are not only issues unique to
capital litigation, but also case-and fact-related issues, unique to the case, that impinge on
federal constitutional rights.
9) It is a basic principle of appellate practice that to preserve an issue for
federal review, the issue must be exhausted in the state courts. To exhaust an issue, the
issue must be presented to the state courts in such a manner that a reasonable jurist would
have been alerted to the existence of a violation of the United States Constiturion. The
better practice to exhaust an issue is to cite directly to the relevant provisions of the
United States Constitution in each proposition of law and in each assignment of error to
avoid any exhaustion problems in the federal courts.
10) It is important that appellate counsel realize that the capital reversal rate in
the state of Ohio is eleven percent on direct appeal and less than one percent in post-
conviction. It is my understanding that forty to sixty percent (depending on which of
several studies is relied upon) of all habeas corpus petitions are granted. Therefore,
appellate counsel must realize that in Ohio, a capital case is very likely to reach federal
court and, therefore, the real audience of the direct appeal is the federal court. 11) Based on the foregoing standards, I have identified three propositions of law that should have been presented to this Court by appellate counsel. The propositions of law identified in this application for reopening and further discussed in this affidavit, were either not presented, or not fully presented, to this Court.
12) Based on my evaluation of the record and understanding of the law, I believe that if these propositions of law had been properly presented for review, this
Court would have granted relief. Also, those errors would have been preserved for federal review.
13) Therefore, Larry Gapen was prejudiced as a direct result of the deficient performance of his appellate counsel on his direct appeal to this Court. PROPOSITION OF LAW NO. I
GAPEN'S JURY IMPROPERLY CONSIDERED AN INVALID AGGRAVATING FACTOR, AS WELL AS PREJUDICIAL EVIDENCE INTRODUCED SOLELY TO SUPPORT THAT INVALID AGGRAVATING FACTOR, THEREBY DEPRIVING HIM OF HIS RIGHT TO A FAIR TRIAL AND SENTENCING PROCEEDING IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, §§ 2, 9,10 AND 16 OF THE OHIO CONSTITUTION.
A. THE JURY IMPROPERLY CONSIDERED THE INVALID DEATH PENALTY SPECIFICATION OF "MURDER IN THE COURSE OF BREAKING DETENTION."
14) The trial court erroneously submitted to the jury a substantive charge for breaking detention (Count One), as well as a specification to Count Thirteen under R.C. §
2929.04(A)(4) alleging murder in the course of breaking detention. The jury returned
"Guilty" verdicts on both the charge and the specification. Accordingly, the jury subsequently considered this specification as an aggravating circumstance during deliberations in the penalty phase of the trial.
15) This Court, however, subsequently reversed both these convictions:
We find that proposition IV has merit. Accordingly, Gapen's convictions for escape and the finding of the R.C. 2929.04(A)(4) specification are vacated. Those charges and specifications are dismissed.
State v. Gapen, 104 Ohio St. 3d 358, 371 (2004). The jury therefore unconstitutionally considered a specification it would not have been able to consider absent the trial court's error.
16) After this Court overturned Gapen's convictions for breaking detention and the
R.C. § 2929.04(A)(4) specifications, appellate counsel failed to properly raise the claim that Gapen's rights were violated when the jury considered an impermissible, invalid aggravating factor during sentencing. In Appellant's Motion for Reconsideration, appellate counsel briefly addressed the jury's consideration of the invalid aggravating
factor. (Exhibit 10, Motion for Reconsideration). However, the issue was raised in regard to Proposition of Law No. VI ("Where the Defendant Has Led an Otherwise
Exemplary Life with the Murder Being a Total Aberration and He Will Adjust Well to
Prison, the Death Penalty Is Not the Appropriate Punishment"). Counsel's argument focused on the appropriateness of the death penalty in Gapen's case not only in light of
the elimination of the aggravating circumstance for breaking detention, but also based
upon proportionality and the inconsistent life and death verdicts. Appellate counsel
inexplicably failed to raise in its Motion for Reconsideration the jury's improper
consideration of the invalid aggravating circumstance as well as the improper and
prejudicial evidence that was admitted solely to support that invalid specification.
17) The Supreme Court of the United States has held that an invalidated aggravating
factor will render a death sentence "unconstitutional by reason of its adding an improper
element to the aggravation scale in the weighing process unless one of the other
sentencing factors enables the sentencer to give aggravating weight to the same facts and
circumstances." Brown v. Sanders, 546 U.S. 212, 220 (2006) (bolded emphasis added).
In other words, constitutional error occurs when the jury "weigh[s] in favor of death a
factor that should not have been part of its calculus." Id. at 221 n.7.
18) As the Court explained, the problem is "the skewing that could result from the
jury's considering as aggravation properly admitted evidence that should not have
weighed in favor of the death penalty." Id, at 221 (bolded emphasis added) (citing
Stringer v. Black, 503 U.S. 222, 232 (1992)). Moreover, the Court explained that "such
skewing will occur, and give rise to constitutional error, only where the jury could not have given aggravating weight to the same facts and circumstances under the rubric of some other, valid, sentencing factor." Id.
19) In Gapen's case, none of the other sentencing factors, as prescribed by Ohio's statutory scheme, allowed the jury to give aggravating weight to the facts and circumstances of the breaking detention specification. Indeed, the evidence to support the specification against Gapen was not even "properly admitted evidence." This evidence should not have been admitted at all. Yet, the jury undeniably considered as aggravation the facts and circumstances of the breaking detention specification when the jury weighed the aggravating circumstances and mitigating factors in its death calculus.
Therefore, the jury's weighing process was unconstitutionally skewed by this additional thumb on the scale in favor of the aggravating circumstances side. See Brown, 546 U.S. at 221 (quoting Stringer, 503 U.S. at 232 ("`[W]hen the sentencing body is told to weigh an invalid factor in its decision, a reviewing court may not assume it would have made no difference if the thumb had been removed from death's side of the scale"')).
20) Gapen was prejudiced by appellate counsel's unreasonable failure to raise the jury's improper consideration of the invalid aggravating circumstance. Had appellate counsel adequately raised this issue in its Motion for Reconsideration, there is a reasonable probability that Gapen's death sentence would have been reversed. As such, appellate counsel was ineffective. Strickland v. Washington, 466 US 668 (1984).
B. THE JURY IMPROPERLY CONSIDERED EVIDENCE ADMITTED SOLELY TO SUPPORT AN INVALID AGGRAVATING FACTOR.
21) Gapen's rights were also violated when the jury was allowed to consider evidence erroneously submitted in support of the R.C. § 2929.04(A)(4) specification alleging murder in the course of breaking detention. 22) The Supreme Court of the United States made clear in Brown that the jury's consideration of improper evidence is a separate and distinct error from the error involved in the jury's improperly weighing an invalid aggravator in the penalty phase deliberations. Brown, 546 U.S. at 220-21 & n.7. The Court explained that "if the presence of the invalid sentencing factor allowed the sentencer to consider evidence that would not otherwise have been before it, due process would mandate reversal." Id. at
220-21 (emphasis added).
23) In Gapen's case, none of the other aggravating factors would allow the jury to
consider the evidence submitted in support of the breaking detention specification. All of the evidence submitted to support the breaking detention specification was highly prejudicial. Indeed, the prosecutor dramatically emphasized the facts behind the charge
and specification at the outset of opening and closing arguments, in both the trial phase
and sentencing phase. (See, e.g., Exhibit 6, Opening Statements - Trial Phase, Tr. 2304-
2306; 2311; 2314-2317; Exhibit 7, Closing Arguments - Trial Phase, Tr. 3680-3687;
Exhibit 8, Opening Statements - Mitigation Phase, Tr. 3973; Exhibit 9, Closing
Arguments - Mitigation Phase, Tr. 4215; 4217; 4219; 4231).
24) The prosecutor framed the outline of the entire prosecution with facts about
Gapen that were relevant only to the erroneous and prejudicial specification.
Accordingly, the jury was permitted to consider not only an invalid aggravating factor as
explained above, but also a plethora of highly prejudicial evidence which the jury would
not have otherwise heard.
25) Gapen was prejudiced by appellate counsel's unreasonable failure to raise the
jury's improper consideration of evidence improperly admitted solely to support the invalid aggravating circumstance. Had appellate counsel adequately raised this issue in its Motion for Reconsideration, there is a reasonable probability that Gapen's death
sentence would have been reversed. As such, appellate counsel was ineffective.
Strickland v. Washington, 466 US 668 (1984). PROPOSITION OF LAW NO. II
GAPEN WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN THE VOIR DIRE PHASE OF HIS CAPITAL TRIAL, THEREBY DEPRIVING HIM OF HIS RIGHTS TO DUE PROCESS AND A FAIR AND IMPARTIAL JURY IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND ARTICLE I, §§ 2, 9,10 AND 16 OF THE OHIO CONSTITUTION.
A. Counsel failed to adequately voir dire and strike --- for cause or otherwise - a prospective juror who would automatically vote for death.
26) Trial counsel failed to review juror questionnaires, conduct adequate voir dire, and strike, whether for cause or otherwise, a juror who would unequivocally vote for death, and who was unable or unwilling to consider mitigating evidence during the sentencing phase. Had trial counsel reviewed the questionnaires and conducted an adequate voir dire, Juror David Nedostup would not have been seated on the jury which ultimately had to decide whether Gapen should live or die. (Exhibit 1, Questionnaire of
Juror David Nedostup).
27) ABA Guideline 10.10.2 states that "counsel should be familiar with techniques ..
for exposing those prospective jurors who would automatically impose the death penalty following a murder conviction or finding that the defendant is death-eligible, regardless of the individual circumstances of the case." Id. Additionally, the same Guideline also requires that counsel be able to voir dire so as to "uncover[] those prospective jurors who are unable to give meaningful consideration to mitigating evidence." Id. See also,
Commentary to ABA Guideline 10.10.2 ("Counsel should conduct a voir dire that is broad enough to expose those prospective jurors who are unable or unwilling to follow the applicable sentencing law, whether because they will automatically vote for death in certain circumstances or because they are unwilling to consider mitigating evidence."). 28) In Morgan v. Illinois, the Supreme Court of the United States articulated the rule with respect to automatic death penalty jurors:
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. Indeed, because such a juror has already formed an opinion on the merits, the presence or absence of either aggravating or mitigating circumstances is entirely irrelevant to such a juror. Therefore, based on the requirement of impartiality embodied in the Due Process Clause of the Fourteenth Amendment, a capital defendant may challenge for cause any prospective juror who maintains such views. If even one such juror is empanelled and the death sentence is imposed, the State is disentitled to execute the sentence.
Morgan v. Illinois, 504 U.S. 719, 729 (1992). The Morgan Court further concluded that
"[b]ecause the `inadequacy of voir dire' leads us to doubt that petitioner was sentenced to
death by a jury empanelled in compliance with the Fourteenth Amendment, his sentence
cannot stand." Morgan, 504. U.S. at 739.
29) The same principles hold true in Gapen's case. Juror Nedostup's questionnaire revealed strong feelings in favor of the death penalty in all cases of murder. (Exhibit 1).
Nedostup also disclosed on the questionnaire that the existence (or absence) of the death penalty as a legal sentence in Ohio made no difference to his belief as to the applicability
of the death penalty. (Exhibit 1). Yet Gapen's counsel failed to make any inquiry during
voir dire into these and other troubling assertions on Nedostup's questionnaire. (See
Exhibit 3, Voir Dire, Tr. at 705). Critically, counsel made no inquiries into Nedostup's
strong beliefs (or his inability to consider mitigating evidence once a guilty verdict was
returned), which would have given them grounds to strike Nedostup for cause. Counsel
also failed to use a peremptory challenge to remove Nedostup. Nedostup ultimately sat
on Gapen's jury. 30) In sum, trial counsel failed to move to strike juror Nedostup, an automatic death
penalty juror, for cause or peremptorily. As a result, Gapen's jury consisted of at least one person who would vote automatically for a death sentence: Counsel allowed a juror to sit who would give no consideration to any mitigating evidence, once Gapen had been found guilty of the aggravated murders. Counsel's failure to ensure that Gapen's fundamental constitutional rights were protected was inexcusable and fell below the standard for counsel as established by the ABA Guidelines and federal case law.
Consequently, Gapen was sentenced to death by a jury that was empanelled in violation of his constitutional rights. Therefore Gapen's trial counsel was ineffective under
Strickland v. Washington, 466 US 668 (1984), for failing to conduct a meaningful voir dire and striking Juror Nedostup - whether for cause or peremptorily - in accord with the
edicts of Morgan.
31) Gapen was prejudiced by his counsel's unreasonable failure to adequately voir
dire and strike a prospective juror who would automatically vote for death. Had trial
counsel adequately voir dired and struck juror Nedostup, there is a reasonable probability that Gapen would not have been sentenced to death.
B. Counsel failed to adequately voir dire and strike - for cause or otherwise - a juror who was biased and unable to render a fair and impartial verdict.
32) Trial counsel failed to adequately voir dire and strike, for cause or otherwise, a juror whose disclosures during voir dire revealed that he was biased and unable to render
a fair and impartial verdict. Had trial counsel properly conducted an adequate voir dire,
Juror Bradley Ivey would not have been seated on the jury.
33) Under the Ohio and United States Constitutions, "[A]n accused is entitled to a jury composed of impartial and unbiased jurors." State v. Zerla, No. 91AP-562, 1992 Ohio App. LEXIS 1280, at *6-7 (Ohio Ct. App., Mar. 17, 1992) (citing Murphy v.
Florida, 421 U.S. 794, 799 (1975); Lingafelter v. Moore, 95 Ohio St. 384 (1917), paragraph two of the syllabus). "Where there is substantial emotional involvement with the facts or the nature of the case which would adversely affect impartiality in the average person, there may be sufficient cause to excuse such a juror for bias." Zerla,
1992 Ohio LEXIS 1280, at *6 (emphasis added). Notably, bias need not be expressly admitted by the prospective juror, but may be implied from the circumstances. Id. at *5.
Because of an accused's right to a jury composed of impartial and unbiased jurors, any substantial doubts with respect to a juror's impartiality must be resolved in favor of the accused. Id. at *7. A juror's pledge that he or she will render a fair and impartial verdict should not be blindly accepted if a juror, under the circumstances, cannot realistically be considered impartial and indifferent. Id. Such a juror can be dismissed as biased, whether or not the juror conscientiously believes that he or she can act impartially. Id.
34) Addressing the duty of the trial judge when confronted with a biased juror, the
Sixth Circuit Court of Appeals held in Miller v. Webb, 385 F.3d 666, 675 (6`}' Cir. 2004):
When a trial court is confronted with a biased juror, as in this case, the judge must, either sua sponte or upon a motion, dismiss the prospective juror for cause. Frazier v. United States, 335 U.S. 497, 511, 93 L. Ed. 187, 69 S. Ct. 201 (1948).
The Court continued:
"When a venireperson expressly admits bias on voir dire, without a court response or follow-up, for counsel not to respond [to the statement of partiality] in turn is simply a failure `to exercise the customary skill and diligence that a reasonably competent attorney would provide."' Hughes [v. United States], 258 F.3d [453] at 462 [(6t1' Cir. 2001)] (quoting Johnson v. Armontrout, 961 F.2d 748, 754 (8°i Cir. 1992)). Id. In Gapen's case, the trial judge failed to sua sponte dismiss the biased juror and trial counsel likewise failed to question the juror or conduct any meaningful follow-up.
35) The Ninth Circuit Court of Appeals similarly held in United States v. Allsup, 566
F.2d 68 (9' Cir. 1977):
A court must excuse a prospective juror if actual bias is discovered during voir dire. Bias can be revealed by a juror's express admission of that fact, but, more frequently, jurors are reluctant to admit actual bias, and the reality of their biased attitudes must be revealed by circumstantial evidence. We agree with the observation in Kiernan v. Van Schaik (3d Cir. 1965) 347 F.2d 775, 781: "That men will be prone to favor the side of the cause with which they identify themselves, either economically, socially, or emotionally is a fundamenta.l fact of human character." The potential for substantial emotional involvement, adversely affecting impartiality, is evident when the prospective jurors work for the bank that was robbed.
As such, the Ninth Circuit held that bias should be presumed on the part of prospective
jurors who are employed by the bank which is alleged to have been robbed by the
defendant.
36) In the instant case, Gapen was charged with killing a woman from whom he was
divorced a mere four days earlier. Along with his former wife, Gapen was charged with
killing a man presumed to be the woman's new romantic interest and the woman's
daughter. During voir dire questioning about whether any prospective jurors had
experience coaching youth sports, Juror Bradley Ivey volunteered the fact that his
[Ivey's] mother had murdered his father when Ivey was a boy. (Exhibit 4, Voir Dire, Tr.
2215-16). ("My mother killed my father. I think that should be brought out.") Gapen's
counsel should have been alerted to the high potential for bias on ivey's part, both
because of the direct parallels between the nature of Gapen's case and the murder in
Ivey's background, and by the fact that Ivey saw fit to raise the issue when he did. Yet Gapen's counsel did little, if anything, after this startling revelation to probe Ivey's fitness to sit as a juror in the case. (See Exhibit 4, Voir Dire, Tr, 2216-17).
37) Moreover, the fact that Ivey could not be considered impartial and unbiased was reinforced by his responses to the few questions counsel did ask. Ivey's answers to counsels' boilerplate questions were generally hedged, and not unequivocal. (See id.)
For instance, when asked if the experience would affect his ability to serve as a juror,
Ivey responded "I don't think so but it has bothered me a lot though." (Exhibit 4, Voir
Dire, Tr. 2217 (emphasis added)). Similarly, when Gapen's trial counsel asked Ivey if he would be able to fulfill his obligations as a juror, Ivey, rather than simply answering
"yes," stated "I don't think it would bother me too much." (Id. (emphasis added)).
Critically, counsel failed to press Ivey for a more defmitive answer to both questions. As a result, substantial doubts about Ivey's ability to be a fair, impartial and unbiased juror went uninvestigated and unchallenged. Gapen's counsel should have moved to dismiss
Ivey for cause, or, failing that, dismissed Ivey peremptorily. Counsel failed to do so, and
Ivey ultimately sat on Gapen's jury.
38) In sum, Gapen's counsel failed to sufficiently voir dire Juror Ivey for bias and his ability to be impartial after Ivey's revelations of personal experience with a crime with close parallels to the Gapen case. Counsel further failed in their representation by neglecting to move to strike Ivey, whether for cause or peremptorily. Given Ivey's personal experience with a similar murder, his ability to be a fair and impartial juror was substantially in doubt. Counsel's failure to remove Ivey falls below the professional standards for capital representation, and denied Gapen his right to a fair and impartial jm'y 39) Gapen was prejudiced by his counsel's unreasonable failure to adequately voir dire and strike a prospective juror who was biased and unable to render a fair and impartial verdict. Had trial counsel adequately voir dired and struck juror Ivey, there is a reasonable probability that Gapen would not have been sentenced to death. Gapen was sentenced to death by a jury that was empanelled in violation of his constitutional rights.
Under Strickland v. Washington, counsels' performance was wholly ineffective. PROPOSITION OF LAW NO. III
THE PROSECUTION'S USE OF A PEREMPTORY CHALLENGE TO EXCUSE A PROSPECTIVE JUROR SOLELY ON THE BASIS OF THE JUROR'S RACE DEPRIVED GAPEN OF HIS RIGHT TO A FAIR TRIAL AND SENTENCING PROCEEDING IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, §§2, 9, 10 AND 16 OF THE OHIO CONSTITUTION.
40) Gapen's constitutional rights were violated when the prosecution exercised a peremptory challenge in a racially discriminatory manner in violation of Batson v.
Kentucky, 476 U.S. 79 (1986) and its progeny including Snyder v. Louisiana, 128 S.Ct.
1203, 1212 (2008) and Miller-El v. Dretke, 545 U.S. 231 (2005), and the trial court failed to uphold Gapen's objections to this challenge.
41) The Supreme Court of the United States in Batson provided "a three-step process for a trial court to use in adjudicating a claim that a peremptory challenge was based on race." Snyder, 128 S.Ct. at 1207. Under the three-step Batson analysis, a defendant must first "make a prima facie showing that a peremptory challenge has been exercised on the basis of race." Id. (citations omitted). Second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question." Id. Third and fmally, the trial court must determine, in light of the parties' submissions, whether the defendant has shown purposeful discrimination. Id. "In considering a Batson objection, or in reviewing a ruling claimed to be Batson error, all of the circumstances that bear upon the issue of racial animosity must be consulted." Snyder, 128 S.Ct. at
1208 (citing Miller-El, 545 U.S. at 239).
42) Under step three, the trial court "must assess the [proponent's] credibility under all of the pertinent circumstances, and then ... weigh the asserted justification against the strength of the [opponent's] prima facie case under the totality of the circumstances."'
United States v. Kimbrel, 532 F.3d 461, 466 (6th Cir. 2008) (quoting Paschal v. Flagstar
Bank, 295 F.3d 565, 574 (6th Cir. 2002) (interrtal quotation marks omitted)). In assessing
a Batson challenge, "the trial court may not short circuit the process by consolidating any
two of the steps." Kimbrel, 532 F.3d at 466 (citing Purkett v. Elem, 514 U.S. 765, 768
(1995) (per curiam); United States v. McFerron, 163 F.3d 952, 955 (6th Cir. 1998)).
43) In Gapen's case, the trial court allowed the State - over Gapen's Batson challenge
- to peremptorily strike African-American prospective juror Daniel Gooden weeks after
the State unsuccessfully moved to strike Gooden for cause. (Exhibit 2, Voir Dire, Tr.
429-30). The trial court found that Gapen made a prima facie case of racial
discrimination as required under Batson. (Exhibit 5, Voir Dire, Tr. 2249). The State then
proffered its allegedly non-discriminatory reasons, including that the state felt that
Gooden "had some problems with the death penalty." (Exhibit 5, Voir Dire, Tr. 2249-
50.) The "most important" of these reasons, by the prosecutor's own description, was
Gooden's "body language" when answering questions about the death penalty during
individual voir dire questioning. (Id.) Following the State's proffered explanation, the
court stated "[i]t doesn't say that it has to be an absolute reason that makes sense. It has
to make sense to the person who gives it. And accordingly the challenge is overruled."
(Exhibit 5, Voir Dire, Tr. 2250). In so doing, the trial court erroneously denied Gapen's
Batson challenge for at least two reasons.
44) First, the trial court incorrectly recited the state's burden at step two of the Batson
analysis when it stated that the proffered reason only needed to "make sense to the person
who gives it." (Id.) The Supreme Court of the United States has explained, however, that a party defending a peremptory challenge under Batson "is not required to produce `a reason that makes sense, but [only] a reason that does not deny equal protection."'
Kimbrel, 532 F.3d at 467-68 (quoting Purkett, 514 U.S. at 768 (per curiam)) (emphasis added). Though the prosecution's proffered reason may have made sense to the prosecution, that standard is a far cry from requiring a reason that does not deny equal protection.
45) Second, the trial court impermissibly conflated the second and third discrete analytical steps required under Batson. The trial court ruled on Gapen's Batson challenge without first finding that the State had come forward with a race-neutral explanation, having found only that the reason "had to make sense" to the prosecution. Moreover, the court not only failed to properly engage in step two of the Batson analysis, it also failed to actually conduct the requisite step three analysis. Under step three, the trial court must
"stack up" the explanations offered in support of the peremptory challenge against the
strike opponent's prima facie case, see Kimbrel, 532 F.3d at 468, and weigh these
arguments in light of "all of the circumstances that bear upon the issue of racial
animosity," Snyder, 128 S.Ct. at 1208 (citing Miller-El, 545 U.S. at 239). Yet the trial
court in Gapen's case provided no on-the-record analysis assessing the persuasiveness of
the parties' arguments. Instead, the court applied an erroneous standard at step two, and
then cursorily ovemtled Gapen's Batson challenge.
46) Analogous to the facts in Snyder, the trial court in Gapen's case rejected his
Batson challenge with virtually no analysis from which to discern which proffered reason
the court credited and why.' Like in Snyder, the trial court here failed to properly explain
'Notably, the trial court had already implicitly rejected another of the state's proffered on the record the basis for its apparent decision to credit the prosecutor's motives. Also, rather than a single day as in Snyder, Gapen's case included a two-week gap between
Gooden's individual voir dire and the prosecution's motion to peremptorily strike
Gooden. Dozens of other jurors were similarly questioned during that two-week gap.
This time lapse makes it highly unlikely that the trial court had an independent recollection of Gooden's demeanor and body language from which to credit the prosecutor's motives.
47) Snyder's application of Batson dictates the same result in Gapen's case;2 as in
Snyder, the trial court's rejection of Gapen's Batson challenge denied Gapen his rights as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States
Constitution, and Article I, §§ 2, 9, 10 and 16 of the Ohio Constitution.
reasons, namely that Gooden would hold the prosecution to a higher burden of proof than required under the law. During the death qualification stage, the state moved to strike Gooden for cause based on the same argument. The court rejected the motion to strike for cause, finding that Gooden had subsequently been rehabilitated by making clear that he would apply the proper burden under the law. (Exhibit 2, Voir Dire, Tr. 429-30).
2That Snyder was not decided until after Gapen filed his direct appeal is of no consequence, as the Supreme Court in Snyder merely explicated Batson's principles. ILLIAM S. L Counsel for Ap Larry James G
Sworn to and subscribed before me this 14th day of January, 2009.
soc. 14".03 F;.^. Exhibit 1
Questionnaire for Juror David Nedostup JUROR QUESTIONNAiR1C To it,,/ / PE rzd L-o 3UROR NAME AND NiJMBER ^ c ^ CJGI ^^ i. Age: Y 7
2. What is your gender? Male X Female 3. What is your race? (please check)
-%-White/Caucasian ___Black/ASrican American _Hispanic/Latino AsianlPacific Islander ___Other (please state)
4. If you have children, please list (include children not living with you): Does child Level of Sex Aae live with you, educadon OQMation ^ 1 ^{ ^E S ^CJ rH % k'.cnE h9 / ^ ,'L^^ {yrr^ i•kRDE
5. Do you have any medioal or physical condition that nught make it difficult for you to serve as a juror? (Please include any hearing or eyesight problem.) Yes No X Please describe:
6. Are you taking any medications that might make it difficult for you to serve as ajuror? Yes No
7. Do you have any problems or areas of concern at home or at work that might interfere with your duties as ajuror during trial? Yes No -,X_ If yes, please describe:
8. What type of area do you live in? (Please check one.) City Suburb _X__ Rural
9. How long have you lived at your present residence? .3 L7ar/TH S
I 10. Do you own or rent? Own )( Rent
11. List areas of past residence within the last tenyears and indicate how long you lived in each location (you do not need to give addresses): /1 aoF.f, ► AZ^ e-N,fdt(2 ?'L. DaY',a,J QH
12. Where were you bom? 1D&yrnn1 13. Where were you raised? 11 4yI'nn/ 14. Is Bnglisb your first language? Yes X No If no, what is your first language?
15. Do you have any difficulty: Reading English? Yes Sometimes No Understanding spoken English? Yes Sometimes No x_
16. Are you currently employed outside the home? "Yes X No If so, by whom are you employed? 11„1i^ f 0 4414w/E s' Full or part-time? ruc c If part-time, how many hours per week? How long have you been so employed? / p YR s 17. What are your specific duties and responsibilities on the job?
r*tri:c ,fR S'4JQt/i C-47*C T'12 49A6A,aF7' 18. If not currently employed outside the home, please check the category that applies to your employment status: Homemaker Student Unemployed-looking for work Retired Unemployed-not looking for work Disabled Other (please explain) 19. If you are not currently employed outside the home, but were previously so employed, please describe your most recent form of employment, stating the name of your employer, whether you were employed fiill or part-time, when and for how long you were so employed: 2 20. Please list your work experience over the past ten years and state when and for how long you were employed at each job. Please give a brief description of each job. ilnl iM-,Q A,e 0,ys^- >EE c7uiEs»q. 3 #l'7 21. Have you ever worked in journalism or the news industry in any capacity? Yes No X If yes, please state where and when you were so employed and give a brief description of your duties: 22. Do you have any close friends or relatives who either have worked or are currently working _ in journalism or in the news industry in any capacity? Yes No _X_ If yes, please state where and when he or she was.so employed and give a brief description of his or her duties: 23. Have you ever worked in a laboratory or in any medical research or testing facility? Yes No - X If yes, please describe your duties and when and for how long you were so employed: 24. Do you now work or have you ever worked in law enforcement or the security field (including federal, military, state, county, corrections, city, auxiliary, volunteer, etc.)? Yes No _X If yes, please describe the position(s) and dates in detail: 25. Have any of your relatives and/or close friends ever worked in law enforcement or the security field (including federal, military, state, county, corrections, city, auxiliary, volunteer, etc.)? Yes No ^ If yes, please describe in detail: 26. What is the highest grade in school that you completed? LiR[ EJ F4o,d s jZz E P f F G o^ x^ GE 27. Please name any educational programs you have attended (vocational schools, certification programs, part-time study): kl ^dE 28. If you attended any schools or colleges after high school, please name the schools and colleges you attended, your major areas of study, and the field in which you obtained your degree(s): Motlapy ailti..E LVcTari, a- 40.J DlG M.^4'u^/ rctd,aR ^n^t'GG 29. Are you ourrently in school? Yes No --)^- If yes, which school and what are you studying? 30. Do you plan to attend school in the future? Yes No If yes, where do you plan to go and what do you plan to study? 31. What special training or skills do you have? (Please include any technical, medical, psychology or scientific training and special skills acquired on the job.) 32. Do you have any legal training or have you taken any law course? Yes ___ No If yes, please explain: 33. Ilave you ever served in the military? Yes No If yes, please list: Branch of service: Aln F0a CC Rank: Lt lR M RW Dates of service: ^y 7 2- 1`I 7!c 34. Do you have combat experience? Yes No If yes, please explain: 4 35. Were you ever involved in any way with military law enforcement, court martial or investigations? Yes No X If yes, please explain: 36. Was your spouse or significant other ever in the military? Yes No If yes, what branch and when? 37. Please complete regarding your current spouse qr partner: - Spouse/partner's place of birth? AiJp,P CCD Spouse/partner's race or ethnic background? Spouse/partner's current employarent status? Spouse/partner's occupation? (If that person is retired, unemployed or disabled, what was his or her occupation?) By whom is he or she employed? How long has he or she worked there? What is the last level of education he or she completed? (Please list any degrees he or she has.) 38. What are/were your parents' (and/or step-parents') occupations? (If retired or deceased, what did they do?) Mother ^^+,.! s e^, F F Step-Mother Father w p^ 6 At ra c^ _r ;=P^,t •s Step-Father 39. Do you have any brothers or sisters with whom you were raised? Yes _-X No ]f yes, please list: sqx Age Ocotpation F s'2 #a,f}E .FF 40. Have you ever been in a courtroom before? Yes _V No If yes, how many times and for what purpose(s)? ^, l r,rR y D or'r'Y -eli..^En'ix 5 41. Have you or any fatnily members or close friends ever sued or been sued in a civil action? Yes No If yes, please explain the nature of the dispute(s): 42. Have you ever served on a trial jury before? Yes No For each time you have sat on a trial jury, please indicate whether it was a criminal case or a civil case: Was a verdict reached? Type of case Year (Please DO NOT state the verdict) •,O,P Al • r X E n sn gbe ! 5 'Ij" 4ad. Su.•F ), ,A",f1 rx 43. Have you ever served on a grand jury? Yes No If yes, was it state or federal and when was it? 44. Aave you ever been the foreperson of a trial jury or grand jury? Yes No X If yes, please state what type of case and when: . 45. Please describe your views on the death penalty: 'tT foA Mr}r,.r, CI{zmr {9FPF_,++dii3^ nN rrS sF 3^y 46. Have you ever held a different view on the death penalty? Yes _ No __X.. if "yes," what caused you to change your view? 47. Which of the following statements best reflects your view of using the death penalty (check one)? v/ Appropriate in every case where someone has been murdered. Appropriate with very few exceptions where someone has been murdered. Appropriate in some murder cases, but inappropriate in most murder cases. Opposed with very few exceptions. Opposed in all cases. 6 48. DIILECTIONS: Place a check in one of the spaces next to each statement indicating your agreement andfor disagreement with the statement at the left. Strongly Slightly Sfightly Strongly Statement Aaree Agrge Aeree Disagree Disaeree Disaeree The death penalty should never be v used as the punishment for any murder. The death penalty should always be used as the punishment for every J murder. , The death penalty should sometimes be used as the punishment in certain murder cases. It does not make any dlf.ference to me whether or not we have a death 3 penalty in Ohio. The testimony of law enforcement officers is not entitled to any greater or lesser impact merely because V they are law enforcement officers. The courts have made it too difficult to prosecute and convict J criminals. If the prosecution goes to the trouble to bring someone to trial, that person is probably guilty. People in prison have a better life than most of the taxpayers who pay V for the prisons, 49. Do you believe that a defendant in a oriminal case should testify or produce some evidence to prove that he or she is not gullty? Yes No Ifyes,pleaseexplainwhy:_ 'j#pj^ R+efYYYr^^ sI AE ^`i^ Gcy as'^ 50. Because this case has received some publicity, some of you may have heard or read something about this case at some time. It is vitally important that you truthfully answer the following questions conaeniing what you have learned about this case from the media. Please indicate from what sources you have leamed about this case (check as many as apply): Television Newspapers^^^o Radio Have had conversations with other people Have overheard other people discuss it 7 Other (Please specify) 51. Based on what you may have heard about this case, do you have an impression or opinion about what happened and who is responsible? Yes No If "yes," please explain: 52. Do you know or are you acquainted with any persons in the following positions (if so, please check the appropriate boxes): 2N Judge The Bailiff The Clerk of Courts Other Employees in the Courthouse The County Prosecutor or an employee in that Office Law Enforeement Officers working in this County The Defense Attorneys or someone employed by them 53. Do you have a family member of close &iend whg..works in the Legal System (e.g., lawyers, pofice officers, probation officers, federal agents, prison or jail guards or other institutional employees)? Yes No -)(- If yes, what are their names and please describe how you know them: 54. What are your opinions, if any, about prosecuting attorneys in general? M os rI ra c,tdfvs Un 'q ('01)nZt1s 55. What are your opinions, if any, about criminal defense attomeys in general? 56. Since the deaths of Martha Madewell, Jesica Young and Nathan D. Marshall, have you had occasion to fonn an opinion? Yes No S( „ If yes, pTease expfan^ 57. Did you know Martha Madewell, Jesica Young or Nathan D. Marshall or ever encounter them before they died? Yes No S^ If yes, please explain: 8 58. Do you know any of 1vlartha Madewell's, Jesica Young's or Nathan D. Marshall's relatives? Yes No _)( If yes, please explain: 59. Do you know Larry J. Gapen? Yes No ^ If yes, please explain: 60. Do you know any of Larry J. Gapen's relatives? Yes No If yes, please explain: 61. Do you identify with any religious or spiritual group, denomination, or set of teachings? Yes X_ No If yes, please provide the following information: How active are you? VEk Y - Have you ever held a position of responsibility in your religious community? YES 62. Are you active in politics? Yes No x If yes, please explain: 63. Generally speaking, do you consider yourself to be (check one): Very Conservative Liberal Conservative Very Liberal Moderate Other 64. Are you familiar with psychological testing? Yes No X If yes, how do you feel about the validity of these tests? 65. Have you ever studied psychiatry, psychology, or any related subjects? Yes X No If yes, please explain: ^F-afRAi 6sy(xaLoc^y 111J .=gLG.6t 9 66. Have you, or any member ofyour family, or close frien ever consulted a psyc trist or psychologist for professional services? Yes No _,X- If yes, how did this consultation affect your opinion about the value of psychiatry or psychology? Please explain: 67. If not answered elsewhere, have you, or any member of your family, or a close friend ever received treatment for drug or alcohol use? Yes No _X_ 68. There is a wide range of opinions about psychologists, psychiatrists, counselors and therapists. Generally, how do you regard these professions? ErEf1.49QY Fya VMious' Zi1wL-5 69. Do you Imow anyone who has a mental health problem? Yes No __4__ If so, without violating your sense of the right to privacy, pleasc briefly describe the situation: 70. Do you have any specialized training or course work in medicine, science or biology? Yes No -X If yes, please describe: 71. Did you take science or math courses in coliege? Yes No -^- If yes, what types of course(s) (e.g., biology, chemistry, physics, math): 72. Please check the answer which best describes how comfortable you usually feel dealing with mathematical concepts: Usually very comfortable Usually fairly comfortable Usually fairly uncomfortable _X__ Usually very uncomfortable 73. Have you ever taken any courses in statistics? Yes No If so, please state when and where: 10 74. Are you or have you been a member ofNeighborhood Watch? Yes No Ifyes, what was the nature of your involvement? 75. Do you have: (please check) N ^Nt Security bars Alarms Guard dog Weapons for self-protection 76. Do you belong to any group or organization which is concerned with crime prevention or victims' rights? Yes No ^ Tfyes, please desqribe: 77. Have you ever been a victim, of a crime? Yes No If yes, how many times? 5' rD a EfJ I T.EM i What type of crime(s)? 78. Did you or anyone.else report it to the police? Yes No If no, why not? 79. Were you interviewed by police? Yes _ZC No 80. Was the suspect caught? Yes No 81. Do you feel the job the police did on it was SatisfactoryWhy? Unsatisfactory Why? 82. Did you testify in court? Yes No _Y, 83. How has that experience affected your irnpressions about the criminal justice system? 10 ..MfFTJ1( I}E&L:fF 84. Other than answers you may have already giv have you had a good or positive experience with any police officers? Yes No Please explain and indicate the police agency involved: rffFy Qi0 A ('JdD 'J6M GATifferda- 2nrfJ,fi7uIiirlP)4CENJX ALlel 11 85, Other than answers you may have already given, have you had a bad or negative experience with any police officers? Yes No _X_,_ Please explain and indicate the police agency involved: 86. Have you, or a member(s) of your family, or someone close to you ever been accused of or charged with a criminal offense? Yes No __X_ If yes, how were you (this person) related to you? Were you (they) convicted? Yes No How has that experience affected your impressions about the criminal justice system? 87. Have you ever visited or been inside a prisoejail? Yes )( No If yes, please explain the circumstances and describe how it made you feel: rA) CYtcA&o w1rll fr3cE Msrirw-L rRfi,Nm6: 88. Have you ever spoken with someone who works at a prison/jail or au inmate in a prisonrail about their experiences? Yes _X_ No If yes, please explain the circumstances: 89. Do you currently, or have you during the past five (5) years, done any volunteer work? Yes X No If so, for what organization(s): tiE ,Y»afbiT LNu,ecN 90. Are there any charities or political organizations to which you make donations? Yes No If "yes," please ex 91. What type of books do you prefer? (Example: non-fiction, historical, romance, espionage, mystery) APntt^G•t rict ^ c' ^;(ar,n.3 dEFEn:Sf 12 92. Do you read a newspaper on a regular basis? Yes No If yes, which newspaper(s): 93. Do you read any magazines or periodicals on a regular basis? Yes _ X No Ifyes,whichones?^c,s;^^^fSEvRC,i 7?.wcNp 62i a< aA/ FRmu,y 94. Which television shows do you watch on a regular basis? ' av 95. Do you ever watch television programs that show real life police activities such as "Cops," "America's Most Wanted," or "Unsolved Mysteries"? Yes X No If yes, Very often Occasionally Ahnost never X 96. When you have the time, what are your leisure time interests, hobbies, and activities? I't4iL09f,I -'TERCt}jtlG - dtkk XIitidi 97. What, if any, groups or organizations do you belong to now or have you belonged to for a significant period of time in the past? A. Now: - B. Previously: 98. Have you served as an officer in any one of these groups? Yes If yes, which group(s): 99. In what sorts of situations would you consider yourself to be -- ALeader: TEHCgi.Ja- r:f,t451b9 A Follower: -c ; y r) x a ;- a 1- jjV F, 13 100. Is there any reason why, if M were the defendant, you would not want someone in your state ofntind on the jury? Yes No -X_ 101. Apart from what you may have read or heard, do you have any personal knowledge of this case or the charges that have been referred to? Yes No If the answer is yes to the above, please state what your personal knowledge consists of: 102. Do you know any of the other prospective Jurors in this case? Yes No If yes, please explain: 103. If selected to serve as a juror on this case, the Court would order you not to read, listen to or watch any accounts of this case reported by televWon, radio or other news media. Will you have any difficulty following this order? Yes No Do not know 104. If you are selected as a juror in this case, the Court would order you not to discuss this case with anyone unless and until pernvtted to do so by the Court. Will you have any difficulty in following this order? Yes No Do not know 105. As a result of answering this Juror Questionnaire, have you started to form any opinions about this case? Yes No ^ Ifyes, please explain: 106. Is there anything going on in your life either at home or at work that might make it difficult for you or distract you if your were seated as a juror in this case? Yes No If "Yes", please explain: 14 107. Is there any matter not covered by this questionnaire that you think the attorneys or Court might want to know about when considering you as a juror in this case? ^I b.41 E I DO HEREBY SOLEMNLY SWEAR OR AFFIItM T]'3AT THE ANSWERS TO THE FOREGOING QUESTIONS ARE TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE AND BELIEF. Date: :f :l U ' Signature: 15 16 Exhibit 2 Voir Dire (Transcript pages 394-431) 394 1 (The following proceedings are had within the 2 presence and hearing of the jury panel 411-B before the 3 Honorable John P. Petzold, Judge, at 2:05 p.m., Leon Daidone, 4 Esq., Sandra Hobson, Esq. and Tracey Ballard Esq., Assistant 5 Montgomery County Prosecutors for the State, and the 6 Defendant in person and by David Greer, Esq. and Bobby Joe 7 Cox, Esq. his counsel. 8 The panel members are Patricia L. Ward, Daniel 9 Gooden, and Janeen Hill, David Carrier and Sean Albaugh.) 10 IN OPEN COURT: 11 THE COURT: Good afternoon, ladies and 12 gentlemen. As you'11 recall from this morning, we talked (. 13 about part of what we're getting involved in here and this 14 afternoon we're going to be talking about two or three 15 things. First, we start with pretrial publicity. 16 At the time of the incident involved in this case there was publicity in the print media and broadcast media about this. Do any of you remember reading or hearing anything about this incident, the death of the three victims, Nathan Marshall Martha Madewell, and Jesica Young, and the arrest, of Larry James Gapen or anything at all related to these offenses? 22 A (No response.) 23 THE COURT: Since you have answered no, you 24 can probably ignore this but I have to give-you the charge anyway in case it prompts someting. If you stated some 395 1 specifications from your memory, the question is if you do 2 happen to think of something later on, is it such that you 3 can set these issues aside and decide the case only from the 4 witnesses that testify and from the exhibits that are 5 admitted into evidence? You to understand many times in 6 media, generations of this, what you have heard may be 7 incomplete, may be inaccurate or totally irrelevant to the 8 issues that you must decide in this case. Therefore, can you 9 set aside anything you saw or heard or may have seen or heard 10 that you may not recollect just this moment, and decide the 11 issues solely on what you hear in this'courtroom? Okay. 12 This is one of the more difficult ones and you're 13 probably going to get more questions about it. In Ohio when 14 a person is found guilty beyond a reasonable doubt of the crime of aggravated murder, and guilty beyond a reasonable doubt of what is known as the death penalty specifications, the law provides for the possibility of the death penalty. Therefore if you are selected as a juror, there is the possibility that you would participate in two proceedings as 20 I outlined earlier. 21 First would be a proceeding in which you must 22 decide by unanimous vote whether or not the State has proved 23 the Defendant guilty beyond a reasonable doubt of the crimes 24 charged and the specifications set forth in the indictment. 25 Depending upon your actions in this proceeding, you may be 396 1 involved in a second proceeding. When the second proceeding 2 takes place, the jury has to consider the penalty to impose. 3 One of the choices is the death penalty. There's probably no 4 more serious nor awesome responsibility which a juror must 5 undertake. In a proper case, where the facts which you find 6 to be present warrant, and the laws I tell you to permits it, 7 could you join in signing a verdict form which imposes the 8 death penalty? 9 Would your own views on capital punishment 10 prevent or substantially impair the performance of your 11 duties as a jury in accordance with the instructions the 12 Court will give you and your oath as a juror? 13 What will happen now is, as prescribed by law, 14 .the State will proceed first to inquire further in these 15 areas and then followed by the defense. So, if you would, 16 please give your answers as truthfully as you can and pay 17 close attention to the questions that are asked of you. Mr. 18 Daidone. 19 MR. DAIDONE: Thank you, Your Honor. 20 VOIR DIRE EXAMINATION 21 BY MR. DAIDONE: 22 Q Good afternoon. I'm Leon Daidone with the County 23 Prosecutors' Office. I'm about to ask you some questions 24 concerning your views and opinions on the death penalty. 25 There's no right or wrong answers. What the State's looking 397 1 for or what the Court's looking for and the defense is 2 looking for is somebody that can be fair and impartial, 3 someone that can be a particular juror in this case. Again, 4 there is no right or wrong. What we just need is honest 5 answers from everyone. 6 VOIR DIRE EXAMINATION OF PATRICIA.WARD 7 BY MR. DAIDONE: 8 Q On the issue of the death penalty, and I'll start with 9 you, Miss Ward. Good afternoon. 10 A Good afternoon. 11 4 In filling out your form, you were asked to describe 12 your views on the death penalty and you indicated you didnTt 13 know. Can you -- have you thought about it anymore? Can you 14 tell us, have you ever held any views about the death 15 penalty, or how do you feel about it now? 16 A Depends on the crime. 17 Q You're going to have to keep your voice up, ma'am. I'm is having trouble hearing you. I'm sorry. 19 A it all depends on what happened. 20 Q So based on your other comments about appropriate in 21 some murder cases but inappropriate in most murder cases, you 22 would be fact sensitive to what the facts would be? 23 A Yes. 24 Q Do you understand that you might have then in your mind 25 what you think the time penalty would be or wouldn't be in 398 1 your mind? 2 A I guess. 3 Q You understand though that whatever feelings you have 4 and concepts about what types of cases are death penalty 5 cases, you would have to put that aside and the Court will 6 instruct you about the type of case that's a death penalty 7 case, do you understand that? 8 A (No verbal response.) 9 Q You have to answer for the Court Reporter. 10 A Yes. 11 Q Would you be able to do that? 12 A I suppose, yeah. 13 Q Now, you indicated on your sheet then that the death 14 penalty should sometimes be used? 15 A Yes. 16 Q And let me ask you, with your view towards the death 17 penalty, would that prevent you or substantially impair you 18 from making an impartial decision as to the Defendant's 19 guilt? 20 A No. 21 Q You would be able to, any opinions you have about the 22 death penalty, that wouldn't prevent you or substantially 23 impair you from making an impartial decision? 24 A No. 25 11 Q When, these types of cases have the two different 399 1 sections to it, there's the trial phase where you would 2 listen to the evidence, and I'm going to ask you a question 3 about that. If the State proves beyond a reasonable doubt 4 the Defendant's guilt of an aggravated murder and guilt to 5 one of the aggravating circumstances specifications, could 6 you sign a verdict form declaring your verdict and stating 7 your•verdict in open court knowing that you would be next 8 going to phase two, the sentencing phase, where a possible 9 punishment could be death? 10 A Yes. 11 Q You could do that? 12 A Yes. 13 Q Now, as that implies, in Ohio, if you were to find that 14 the State proved beyond a reasonable doubt the Defendant's 15 guilt of an aggravated murder and of an aggravating 16 circumstance, the death penalty is not automatic, you have 17 to go to the second phase where the Judge talk about some 18 mitigating factors that you would have to listen to; do you 19 understand that? 20 A Yes. 21 Q In the second phase, sentencing phase, if the State were 22 to prove beyond a reasonable doubt that the aggravating 23 circumstances -- Judge will tell you what they are -T 24 outweigh the mitigating factors, Judge will tell you what 25 they are, can you sign your name to a verdict form and 400 1 declare your verdict in open court knowing that you will be 2 stating that the Defendant will be sentenced to death? Can 3 you do that? 4 A Yes. 5 Q You understand there will be a point where you'll go 6 back in deliberations, and you're going to have to tell us 7 right now if you can do this or not about signing a verdict 8 form. Can you do it? 9 A Yes. 10 Q And I understand the serious nature and hesitation. 11 These are not easy issues to deal with. 12 MR. DAIDONE: Thank you. 13 VOIR DIRE EXAMINATION OF MR. GOODEN 14 BY MR. DAIDONE: 15 Q Mr. Gooden, from your form you indicated you were not a 16 supporter of the death penalty? 17 A That's correct. Q Then you went on and said you opposed it with very few exceptions? A That's correct. Q Are you telling us that you would never vote for the death penalty? Or help me out here with what your feelings 23 or views are that you have. 24 A If it was absolutely clear that it should be supported, 25 I would, but basically for religious and historical reasons, 401 1 I'm against the death penalty. 2 Q How long have you held these religious beliefs that you 3 have? 4 A As long as I can remember. 5 Q And historically, too, have you done any, like 6 examination or like a study of the death penalty? 7 A We11; to some degree in college we looked at death 8 penalty and who got it and who didn't get it. 9 Q These studies that you did, did you read about or did 10 you have any actual work in interviewing people or anything 11 like that? 12 A Some professors I had, had done it. Dr. Upton,.he did 13 extensive work in that area. 14 Q Which school was that? 15 A Ohio State University. 16 Q And he was an opponent of the death penalty? 17 A He just did a lot of studies on death penalties and race. Q Involving, do you mean like proportionately who got the death penalty and who didn't? A It was socioeconomic factors as well as race factors. Q Did you take part in any of these studids, or you would 23 just -- 24 A No. I was a student of his. He was a mentor, so to 25 speak. 402 1 Q Let me just ask you. We're involved here with a death 2 penalty case and you yourself know the involvement you had in 3 your past. How long ago would this have been? 4 A In the '70s. 5 Q It's been awhile. Do you feel though that those studies 6 or different things might actually influence you in any 7 deliberations you have here in Court? 8 A Well, they might, they might. 9 Q Can you tell us how they might influence you? 10 A Well, if I felt, I don't know, I guess if some of those 11 factors still exist or exist in a particular case, they would 12 probably influence me. 13 Q The Judge is going to tell you what factors you have to 14 consider, the Judge is going to give you the law on this, do 15 you understand that? 16 A Yes, I do. 17 Q And you might have some notions, feelings about the 18 death penalty. I guess the issue is, can you put those aside 19 or would they prevent you or substantially impair you from 20 making an impartial decision in the case? 21 A I can definitely promise that. 22 Q You could put those feelings you have aside? 23 A Yeah. 24 Q Now, on your form you indicated there was a statement, ^ 25 the death penalty should never be used for any murder; and 403 1 you put agree? 2 A Could you read that again? 3 Q A statement says here on the form, the death penalty 4 should never be used as a punishment for any murder; and you 5 put agree. Are you saying that you, how does this influence 6 you, these feelings? Do you think it should never be used? 7 A Again, maybe in certain circumstances it should be used, 8 but I'm not a strong opponent of the death penalty, if you 9 know what I mean. 10 Q Is this something -- 11 A I don't think that -- In fact, to reiterate on that, I 12 don't think that the State -- to some extent it makes the 13 State just as guilty in my mind. 14 Q And are these feelings -- 15 A Then there's always a chance of a mistake, which there 16 has been in the past, and you can't right it once it's wrong. 17 Q These feelings you have, they would influence you in 18 your decisions? 19 A If there was some doubt or -- 20 Q Are you telling us that -- you know, we don't expect 21 people to come in here with clean slates. You have your 22 opinion. I guess what we're just asking you is, would these 23 opinions substantially impair you so that you could not 24 render an impartial verdict? 25 A Oh, no. No, they wouldn't. 404 1 Q You know, the standard of proof in a criminal case is 2 beyond a reasonable doubt. And that's the same in any type 3 of case whether it's death penalty case, or a bike theft 4 case. Would you hold the State to a higher standard in a 5 death penalty case, like beyond all doubt in a death penalty 6 case? 7 A Yeah, I think I would. 8 Q And you understand that's not the standard? 9 A But it's the difference between stealing a bike and 10 putting a man to death. 11 Q We all very seriously understand that, but the law says 12 that every criminal case is judged as standard, the standard { 13 of proof is the same, beyond a reasonable doubt. If you're 14 telling us that because it's a death penalty case, based on 15 your views you'd be holding the State to a higher standard 16 than beyond a reasonable doubt, we have to know that. 17 A. Well, if you put it that way, I guess I would because 18 once you take a man's life you can't give it back. if you 19 put somebody in jail, you can always release them if they're 20 innocent and right the wrong. Once you put a man to death, 21 it makes the State just as guilty in my opinion, in my mind. 22 Q So you would want beyond all doubt? 23 A I think if you are going to put somebody to death, you 24 better be sure, you know. 25 Q The Judge is going to instruct you on what beyond a 405 1 reasonable doubt means, but you would still hold to your own 2 beliefs and want it beyond all doubt? 3 A That's a tough question. 4 Q It is. But it's something we have to know now. We 5 can't wait until a week from now or weeks and you're back in 6 the jury room and decide, hey, I want this beyond all doubt. 7 These are tough questions. 8 A Reasonable doubt and all doubt? I guess in my mind, to 9 be honest, to be comfortable, it would have to be all doubt 10 to me. Reasonable doubt wouldn't be a tough one. 11 Q Let me just follow that up. So in the trial phase, if 12 the State proves beyond a reasonable doubt the Defendant's 13 guilt of an aggravated murder and guilt to one or more of the 14 aggravating circumstances specifications, just proves 15 reasonable doubt, not all doubt, just reasonable doubt, would 16 you be able to sign a verdict form declaring your verdict 17 stating your verdict in open court, knowing that the next 18 phase is going to be the sentencing phase, and this Defendant 19 could receive the death penalty? 20 A I could do that, but I think my difficulty comes in the 21 next section when you talk about putting a man to death and 22 in my mind is reasonable doubt good enough, and I can't say 23 that reasonable doubt is good enough in my mind. 24 Q You're talking about in the sentencing phase? 25 A Sentencing phase. 406 1 Q Because you're going to be faced with the same issue of 2 beyond a reasonable doubt, except it's now if the State 3 proves beyond a reasonalbe doubt that the aggravating 4 circumstances outweigh the mitigating factors, can you sign 5 your name to a verdict form and declare in open court, 6 knowing you are stating that this Defendant be sentenced to death? A I don't know that I can. Q You want more than reasonable doubt? A Yes, I guess that's what I'm saying. MR. DAIDONE: Thank you. 12 VOIR DIRE EXAMINATION OF JANEEN HILL BY MR. DAIDONE: Q Miss Hill, good afternoon. A Good afternoon. Q On your views of the death penalty you put you didn't 17 know. Now that you have been sitting here listening, can you 18 tell us if you possess any views or beliefs, whether moral, 19 religious or personal or otherwise, considering the death 20 penalty? 21 A It depends on the crime. 22 Q It depends on the crime? 23 THE COURT: Make sure you speak up, ma'am. 24 This is being recorded and I'm an old man, and I want to make • 25 sure I hear everything. 407 1 A Okay. 2 BY MR. DAIDONE: 3 Q So you havecertain beliefs as to when it should apply 4 and when it should not apply? 5 A Yes. 6 Q Do you understand that it's fine to have your own 7 beliefs but when we get in a court setting, the Judge is 8 going to tell you under what circumstances that it would be 9 appropriate for the death penalty, do you understand that? 10 A Yes. 11 Q Would you be able then to put those feelings aside and 12 base the case on the law that the Judge gives you concerning 13 the death penalty? 14 A Yes. 15 Q Because on the form where it said that the death penalty 16 should -- what you're trying to say is that sometimes it 17 should be used, is that your feelings? 18 A Yes. 19 Q Because on your form, when asked, ybu said the death 20 penalty should sometimes be used and you checked you disagree 21 with that? 22 A It should be used, it depends on what the crime is. 23 Q Again, you're not totally against, not totally for it. 24 It depends on the fact of the particular case? 25 A Right, right. 408 1 Q You understand that the Judge is going to tell you about 2 what case is qualified, do you understand that? 3 A Yes. 4 Q Would these views or feelings that you have towards the death penalty, would they prevent you or substantiaJ.ly impair 6 you from making an impartial decision as to the Defendant's 7 guilt? 8 A No. 9 Q iind in the first phase, the trial phase of the trial? 10 A Um hmmm. 11 Q If the State proves beyond a reasonable doubt the 12 Defendant's guilt of an aggravated murder, and guilt as to 13 one of the aggravating circumstances, can you sign a verdict 14 .form declaring your verdict and stating your verdict in open 15 court knowing that you will be going to phase 2 in which a 16 possible sentence could be death. Can you do that? 17 A Yes. 18 Q When you get into the sentencing phase and if the State 19 proves beyond a reasonable doubt that the aggravating 20 circumstances outweigh the mitigating factors, can you sign 21 your name to a verdict form and declare your verdict in open 22 court knowing that you'll be stating that this Defendant be 23 sentenced to death? Can you do that? 24 A Yes. 25 11 MR. DAIDONE: Thank you. 409 1 VOIR DIRE EXAMINATION OF DAVID M. CARRIER 2 BY MR. DAIDONE: 3 Q Mr. Carrier? 4 A Yes. 5 Q Good afternoon. 6 A Afternoon. 7 Q You indicated that you are for the death penalty if 8 administered properly? 9 A Yes, sir. 10 Q You indicated somewhere, I believe you wrote something 11 later on that you would want an actual eye witness to the murder. A Yes, I think that would be appropriate. Q I can't hear very well. A It would be my belief that it would be appropriate to 16 have an eye witness to a murder in order to execute a person 17 for taking another person's life. 18 Q So you're saying that if there's an actual murder that's 19 commited and there's not another person that actually watches 20 the actual killing itself, that you would not be able to 21 administer the death penalty in that particular case? 22 A That is correct. 23 Q The Judge is going to -- That's your views, correct? 24 A Yes. 25 Q The Judge is going to instruct you later on about 410 1 different types of evidence, direct evidence, circumstantial 2 evidence, and that might not be the law. The law might not 3 be that the State has to provide an actual eye witness, do 4 you understand that? 5 A Yes, I do. 6 Q Are you telling us that you would not follow the law but 7 you would hold to your own beliefs that you actually need an 8 eye witness to view the crime before you can consider the 9 death penalty? 10 A In the trial phase I wouldn't have a problem considering 11 the death penalty. In the sentencing phase, I would if 12 there's not an eye witness. Q So in the guilt phase -- Strike that. You know what reasonable doubt is? The Judge will give you an instruction that the State has to prove its case beyond a reasonable. doubt? A Right. Q And the law -- and that`s the same for any kind of case, a bicycle case. Are you saying that you would hold the State to a higher standard, like beyond all doubt? You would want an actual witness there? A I stated it that way, yes. Q These feelings that you have about actually having an eye witness, would that prevent you or substantially impair you from making your decisions in the case? 411 1 A Concerning guilt or innocence, no. 2 Q But it would impair you in the sentencing phase? 3 A Yes. Q So if the State were to prove beyond a reasonable doubt that the aggravating circumstances outweigh any mitigation, but there was no actual, actual eye witness, are you saying then you could not sign your name to a verdict form and 8 declare your verdict in open court knowing that you would be 9 sentencing the Defendant to death? 10 A That's correct. 11 MR. DAIDONE: Thank you. 12 VOIR DIRE EXAMINATION OF SEAN ALBAUGH 13 BY MR. DAIDONE: 14 Q Help me with your last name. It's Mr. -- 15 A Albaugh. 16 Q Albaugh? 17 A Yes. 18 Q Good afternoon. 19 A Afternoon. 20 Q And your feelings about the death penalty is you believe 21 an eye for an eye? 22 A As long as proven beyond a reasonable doubt that the 23 Defendant would be guilty of aggravated murder, yes. 24 Q So naturally the State would still have to prove .its 25 11 case? 412 1 A Yes. 2 Q These feelings that you have, is that based upon 3 religious, personal beliefs? 4 A I guess mostly personal. 5 Q And this eye for an eye, if the State's proven its case 6 beyond a reasonable doubt, you understand that the Judge is going to give you the law as to exactly which circumstances you can consider the death penalty in? Do you understand that? A Yes. Q And these feelings you have, I would say for the death 12 penalty in certain instances, would you be able to put those 13 aside if they didn't follow the law that the Judge said it 14 would? 15 A If they did not follow, yes, I could put it aside. 16 Q So the feelings you have for the death penalty, in 17 certain instances you still would follow the law? 18 A Yes. 19 Q if the State would prove beyond a reasonable doubt the 20 Defendant's guilt of an aggravated murder and guilt of one or 21 more of the specifications, aggravated circumstance 22 specifications, could you sign a verdict form declaring 23 your verdict and stating your verdict in open court knowing 24 that you must then move to phase two, where the possible 25 punishment is death? Could you do that? 413 1 II A Yes, I could. 2 Q In the sentencing phase, if the State has proven beyond a reasonable doubt that the aggravating circumstances 4 outweigh the mitigating factors, can you sign your name to a 5 verdict form and declare your verdict in open court knowing 6 that you'll be sentencing the Defendant to death? 7 A Yes. 8 MR. DAIDONE: Thank you, Your Honor. 9 THE COURT: Mr. Cox. 10 MR. COX: Thank you, Your Honor. 11 VOIR DIRE EXANlINATION 12 BY MR. COX: 13 Q Ladies and gentlemen, when we first started this morning 14 everybody was introduced, but my name is Bobby Joe Cox, in 15 case you didn't catch my name the first time. And David 16 Greer and I represent Larry-Gapen, and what we're trying to 17 do is find individuals who can be fair, reasonable, listen to 18 the law and not be too emotional, but judge the facts. And 19 that's a hard combination to find a lot of times. 20 Now, the prosecutor and the Judge also initially this 21 morning threw some terms at you. And unless you have been to 22 law school and trained or are in law enforcement or 23 government, terms like aggravated murder, the most you have 24 ever heard of that term before today, you might have read it 25 in the paper or something. You have heard the term beyond a 414 1 reasonable doubt, and you have heard the term by Mr. Daidone 2 of beyond all doubt. 3 We're standing up here and we're asking you questions 4 and you haven't been told what those particular -- and the 5 Judge is going to tell you. Unfortunately, at this phase of 6 the process, only the Judge can define those terms and give 7 you the law. We don't have that authority to do it as 8 lawyers. That's the Judge's job. But when you hear those 9 tertos, is there anyone that doesn't understand that beyond a 10 reasonable doubt is the highest level of proof that we have 11 in our system of laws or juris prudence, do you understand 12 that? 13 That's the highest level that we have. 14 A Yes. 15 Q So in a criminal case, that proof is the highest level. 16 And a few of the questions that was put to the panel is 17 beyond all doubt. 18 VOIR DIRE EXAMINATION OF MR. GOODEN 19 BY MR. COX: 20 Q Let me talk to you Mr. -- And that was a question that 21 came up. Do you understand the difference between beyond a 22 reasonable doubt, the highest level of proof that we have in 23 the system, as opposed to beyond all doubt? 24 A Pretty much, yes. 25 Q And realizing that our system is built with that high 415 1 level of proof, and the Judge explains to you what beyond a 2 reasonable doubt is, do you believe in your heart that you 3 can follow that? 4 A Yes. 5 4 I notice that questions came up that all the things that 6 occur influence us, your training back in 1970 when you were 7 in college. We all are a product of our prior being, in 8 other words, our education, our experience, etc. Is there 9 anything about your training or education that you rnceived 10 when you was in college that would rise to the level that 11 would keep you from bringinf a fair impartial verdict in the 12 year 2001? 13 A No. 14 MR. COX: No. 15 VOIR DIRE EXAMINATION OF MR. ALaAUGH 16 BY MR. COX: 17 Q Mr. Albaugh, correct, sir? 18 A Yes., 19 Q I have a combination of a southern culture even though 20 I've been in the north a long time and as a result of that, 21 have a little trouble pronouncing words sometimes so bear 22 with me. And names. 23 I noticed in your questionaire, and there is no right or 24 wrong answer, but you believe strongly in the death penalty; 25 is that correct, sir? 416 1 A When it's appropriate as by law. Q in this particular case, and you gathered that probably from reading the questionaire, Larry Gapen, my client, is charged with killing three people, and Mr. Gapen did kill three people. The facts will come forth, and_y-cw'_LL have to make a decision as to whether or not the killing of any of 7 those individuals rises to the level of what we call 8 aggravated murder. All right? 9 But what I'm saying tci you is that knowing that my 10 client, Gary Gapen, did kill three people and that one of 11 those persons was a 13-year-old girl, just knowing that, the 12 emotions, would that say that anybody that did that gets the 13 death penalty? 14 A I guess there would be circumstances when it wouldn't 15 necessarily be appropriate. 16 Q All right. Let's say that in the trial phase, the first 17 phase, this type of a case, that the evidence comes forward 18 and you are satisfied that aggravated murder has been proven, 19 and one or more of the specifications has been proven, and 20 you're a member of the jury and that's agreed upon, and you 21 go to the second phase, what we call a sentencing phase; And 22 that's where the government has to prove that the aggravating 23 circumstances, beyond a reasonable doubt, over the mitigating 24 factors. And, of course, there again, the Judge is going to ^ ` .... 25 tell you later what is meant, the definitions of aggravating 417 1 circumstances, and definition of aggravating factors. And if 2 you're not convinced beyond a reasonable doubt that the 3 aggravating circumstances outweigh the mitigating factors, 4 can you, knowing that three people are dead, are you capable 5 of signing a verdict form with something less than the death 6 penalty? 7 A Unless they haven't proven beyond a reasonable doubt, 8 no, I would not. 9 Q' In other words, if there has been enough evidence on 10 mitigating factors to satisfy you that the aggravating 11 circumstances do not outweigh the mitigating factors beyond 12 a reasonable doubt, you could come back with a penalty less f 13 than death, is that correct, Mr. Albaugh? 14 A Correct. 15 VOIR DIRE EXAMINP,TION OF MRS. HILL 16 BY MR. COX: 17 Q And Mrs. Hill? 18 A Yes 19 Q As we ask these questions, if anything comes to 20 anybody's mind when I'm standing up here, please raise your 21 hand so I can get to you next and you can respond. Because 22 you can see what we're attempting to do. We're trying to get 23 people -- There is no right or wrong answers. Knowing now 24 that there's three people dead, and Larry Gapen caused their 25 death, do you hold that if anyone kills three people, that 41B 1 the death penalty must be imposed? 2 A Yes. 3 Q Thank you for your candor. So that, if we got to the 4 sentencing phase, the last phase, and the government proved 5 the aggravating factors, and three people had been killed, 6 that even though those weren't proved beyond a reasonable 7 doubt, reference to the mitigating factors, you say anybody 8 that kills three people gets the death sentence 9 automatically? 10 A Yes. 11 Q All right. Now, you know that the Judge would instruct you on the law, as I told you earlier, right, because he runs this court. He's going to tell you what aggravating circumstances are and what mitigating factors are. But even though he tells you, if it doesn't outweigh it, and you've 16 got three people that are dead, you would still have to vote 17 the death penalty? Is that correct? 18 A Yes. 19 Q That would be just an automatic thing, wouldn't it? 20 A Yes. 21 VOIR DIRE EXAMINATION OF MR. ALBAUGH 22 BY MR. COX: 23 Q How about you, Mr. Albaugh, in thinking it and listening 24 to what Mrs. Hill said, are you satisfied that it wouldn't be 25 11 automatic, or do you still listen to the Judge, and if they 419 1 did not prove those aggravating circumstances beyond a 2 reasonable doubt as to the mitigating factors, what would you 3 do in that case? 4 A I wouldn't necessarily say it would be automatic. I 5 guess there could be circumstances under which it wouldn't 6 be. 7 MR. COX: All right. VOIR DIRE EXAMINATION OF MRS. WARD BY MR. COX: Q And, Mrs. Ward, the prosecutor talked to you first and now I'm talking to you. You have now listened to other 12 people give their opinions and you have heard other 13 explanations by Mr. Daidone and myself, have we said anything 14 that kind of sparked your mind that you would like to tell us 15 about, or you think about? 16 A No. 17 Q Knowing that Larry Gapen killed tree people, and knowing 18 that one of those persons was a young lady thirteen years of 19 age, would you say the death penalty is automatic in that 20 case, or would you be able to keep an open mind and listen to 21 all the mitigating factors before you came to a decision? 22 A I'd have to hear the facts. 23 Q You'd have to hear the facts? 24 A Yes. 25 Q If the government didn't prove aggravated murder during 420 1 the trial or the verdict phase, then we would never get to 2 the second phase, you understand that? 3 A Yes. 4 Q But if the government did prove aggravated murder, and 5 one or more of the aggravating circumstances beyond a 6 reasonable doubt, you would be able to sign the verdict form 7 and proceed to the second phase, is that correct? 8 A Yes. 9 VOIR DIRE EXAMINATION OF MR. GOODEN 10 11 BY MR. COX: Q And how about you, Mr. Gooden? A Repeat that. .Q How about you? In other words,•you understand that in the Government's case, the first phase, what we call the 16 trial phase, and the verdict phase, that if the Government 17 does not prove, even though you've got three people dead, the 18 Government does not prove aggravated murder beyond a 19 reasonable doubt, and the government does not prove one or 20 more of the aggravating circumstances beyond a reasonable 21 doubt, you never get to the second phase; do you understand 22 that? 23 A Yes, sir. 24 Q But if they do prove it, and they prove it not beyond 25 all doubt, but beyond a reasonable doubt, and the Judge will 421 1 give you that instruction, would you have any problem in 2 signing the verdict form as to the first phase, knowing it's 3 going to take it to the second phase, would you have any 4 trouble with that? 5 A No. 6 Q When you got to the second phase, now, and the 7 Government now, you have to be convinced, whatever the 8 aggravating factors and the circumstances are, if they been 9 proven beyond a reasonable doubt, weighed against the 10 mitigating factors in the case, not beyond all doubt, you 11 understand the difference, is that correct? 12 A Yes. Um hmmm. 13 Q If you were satisfied, that the aggravating 14 circumstances have been proven beyond a reasonable doubt as 15 to the mitigating factors, could you come back with the death 16 penalty? 17 A In that way I could. 18 Q You could follow the law as Judge Petzold tells you; is 19 that correct, sir? 20 A Yes, sir. 21 Q But by the same token, if the government is unable to 22 prove that the aggravating circumstances, if they were unable 23 to prove beyond a reasonable doubt that they weighed against 24 the mitigating factors, could you come back with something 25 less than the death penalty? 422 A Yes. VOIR DIRE EXAMINATION OF MRS. HILL BY MR. COX: Q And there again, I don't mean to pick on you, Mrs. Hill, but you have kind of told me that just automatically, if you kill three people, you deserve and you get the death penalty, is that correct? Am I correct, ma'am? 8 A Yes. 9 Q Even though the Government has the burden to prove 10 aggravated murder and one or more of the aggravating 11 circumstances in order to even get to the second phase, it 12 would be the way you have expressed yourself, if you kill 13 three? 14 A Yes. 15 Q Am I correct? 16 A Um hmmm. Q So you would have really made up your mind in the first phase, never even getting to the second, is that correct? A Yes. VOIR DIRE EXAMINATION OF MR. CARRIER BY MR. COX: 22 Q Mr. Carrier? 23 A Yes. 24 Q We have been through this and think you pretty well 25 understand. In the first phase, if the Government fails to 423 prove the aggravated murder, you realize we wouldn't get to the second? A Yes. Q. And aggravated circumstances? 5 A Yes. 6 Q But if they would be able to prove it beyond a reasonable doubt, would you have any trouble signing the 8 verdict form? 9 A For the first phase? 10 Q For the first phase. 11 A No. Q Let's go to the second phase. You know three people have been killed by Mr. Gapen, you believe it's an automatic death penalty if three people have been killed, just automatic? 16 A No, I don't. 17 Q Would you hold the Government to the proof in the second 18 phase, proof must be proven beyond a reasonable doubt, not 19 all doubt, just beyond a reasonable doubt, the Judge will 20 instruct you on that, that the aggravated circumstances 21 outweigh the mitigating factors, would you then be able, if 22 they could prove it, got to prove it, if they prove that the 23 aggravating circumstances outweigh the mitigating factors, 24 could you sign the verdict form for the death penalty? 25 A That would depend upon the circumstances. 424 1 Q I understand that you don't know what all the 2 circumstances are, but you do know that the Government has 3 the burden? A Right. 5 Q Of beyond a reasonable doubt of the aggravating 6 circumstances, is that correct? A Correct. 8 Q And they have to be proven so that they outweigh the 9 mitigating factors? 10 A Correct. 11 Q You don't know what the mitigating factors are and don't know what aggravating circumstances are? A Right. Q I guess what I'm trying to get to, knowing that has to be done and knowing that the Judge will instruct you on the 16 law, can you follow the law as Judge Petzold gives it to you? 17 Set your emotions aside, say I have got a job to do and I'm 18 going to. It's not going to be easy but I'm going to follow 19 Judge Petzold? 20 A I would have a problem without an eye witness present. 21 Q When you say the eye witness, whether or not the person 22 actually did the killing or whether or not it rises to that 23 level? See, because I have told you that Mr. Gapen killed 24 three people. 25 A Right. 425 1 Q There's no dispute on that. Now the dispute is whether 2 or not it's aggravated murder in the first phase and the 3 dispute will be -- 4 A Right. 5 Q If it ever gets to the second phase? A Right. Q Then we have got to follow the law. Aggravating circumstances, you're going to hear evidence on that, and mitigating factors. But we can't tell you ahead of time, 10 getting the cart before the horse. Makes it difficult but 11 we're just trying to get people who can be honest, and we all 12 have difficulty here. 13 A Right. 14 Q Is the hang up that the person, in other words, when you 15 say beyond a reasonable doubt, and that stuff, you have to 16 see the person? In other words, has to be, an eye witness 17 that actually saw someone kill someone? But if there's no 18 dispute, in reference that there was a killing, just a 19 question what are the facts and circumstances that surround 20 and make up the incident? 21 A Yes. 22 Q Do you see the difference in what I'm asking you? 23 A I see it. 24 Q So let's get back to that second phase. And if there's 25 11 anything I say that you think ought to be brought out or want 426 1 to express yourself, please feel free to do so. But what I'm 2 saying, if the Government does not prove that the aggravating 3 circumstances outweigh the mitigating factors beyond a 4 reasonable doubt, don't do it, can you sign the verdict form 5 with something less than death, even though three people were 6 killed by Mr. Gapen? 7 A I'm not really certain of that. I'd say I'm not sure at 8 that if I'd sign at that stage. 9 Q Let me ask you this: if the Judge's instruction on the law, instructs you, and he will if you're selected as a member of this jury, are you capable of setting maybe a personal feeling or pride or emotion aside and saying that I will do what the law says I should do and follow the 14 .instructions as the Judge gives it to you? 15 A Capable of setting feelings and emotion aside, but my 16 beliefs, no. 17 Q I understand. I understand. Are you saying that under 18 any circumstances that you cannbt impose the death penalty? 19 A No, I feel.good with the death penalty, just the 20 circumstances. 21 Q So not knowing what those circumstances are, or without 22 knowing what the mitigating factors are, or without knowing 23 all the aggravating circumstances of whether or not they're 24 ever proven or not, you just can't give us an answer, is that 25 what you're saying? 427 1 A That's as far as implementing, actually implementing, 2 the death penalty itself. 3 Q Okay. 4 A If there's a certainty of that, that the person 5 committed the crime, no doubt whatsoever, then I wouldn't 6 have a problem implementing, signing a petition to implement. 7 Knowing that three people have been killed and one of them 8 is a 13-year-old young lady, does that inflame you 9 emotionally? And it does some people, nothing wrong with 10 that. We're all human beings. Does that inflame you to such 11 a state you could not give something less than the dealt 12 penalty? 13 A No. 14 MR. COX: No further questions. 15 THE COURT: Ladies and gentlemen of this 16 panel, you'll be taken to Judge Gorman's court for the time 17 being and we'll complete some proceedings we have to complete 18 concerning your status. Upon the conclusion of that, you'll 19 be advised whether you'll have to call us back, participate 20 in this particular trial, or call us back and participate in 21 some other way. You'll be advised. And accordingly, you'll 22 be excused at this time, and I thank you for being here and 23 participating in here and we may not see some of you. More 24 will be revealed. Thank you. 25 (The following is out of presence and hearing 428 1 of the jury panel; Defendant and all counsel present:) 2 IN OPEN COURT: 3 THE COURT: Let the record reflect that the 4 small panel has been excused. We are prepared now to proceed 5 to challenge for cause participating in the death penalty 6 phase starting with the State. 7 MR. DAIDONE: State would challenge juror 8 number 2, Daniel Gooden who when questioned by the State 9 responded especially in the sentencing phase even if the 10 State were to prove the aggravating circumstances outweigh 11 the mitigation beyond a reasonable doubt, he could not sign a 12 verdict form, that he wanted a higher standard, indicated he 13 could not sign the verdict form based upon beyond a 14 reasonable doubt. 15 The State would also challenge juror number 4, 16 David Carrier, who said he could not sign I verdict form in 17 the sentencing phase unless there was an eye witness. He has 18 been emphatic throughout in saying he would not sign without 19 an actual eye witness. State would ask that those two be 20 excused. 21 THE COURT: For the defense. If you want to 22 take the first two raised by the State and start from that 23 point rather than any you might have might make things 24 easier. 25 1 1 MR. COX: Daniel Gooden, juror number 2 on the 429 1 panel, Your Honor, we oppose the challenge. I believe when I 2 questioned Mr. Gooden, he said he could follow the law, 3 follow the instructions of the Court and could-impose the 4 death penalty and follow the law. So we oppose that 5 challenge. David M. Carrier, I believe, juror 6 number 4, I would also say that he should be removed, Your 7 Honor. Mr. Carrier. And I guess that's the two that the 8 prosecutor put up. 9 We believe that juror number 3, Your Honor, 10 Rene Hill, based upon three people were killed, it's an 11 automatic situation. It's obvious that she said she didn't 12 even have to get to the last phase. First phase, three 13 people killed, death penalty was automatic with her, Your 14 Honor. 15 MR. DAIDONE: Your Honor, no objection to 16 juror number 3 being removed. 17 THE COURT: Very we11. Okay. With respect to 18 Tricia Ward, there being no objection, she shall remain. 19 With respect to Daniel Gooden, part of the 20 questions to Mr. Gooden were asked somewhat in a vacuum as to 21 whether or not he would ever sign a verdict with respect to 22 the death penalty as he was concerned about methods of proof 23 and the like. And once this subject matter was broached 24 concerning the sentencing phase, after being aware that the 25 defense is indicating, at least for purposes of record, that 430 1 Defendant is going to admit part of the homicide softened 2 somewhat and indicated he would follow the law. Accordingly, 3 he stays. 4 Miss Hill, I'm somewhat concerned with for the 5 reason it's an automatic thing. This sort of transcends the idea of the two processes we're going to have and, 7 accordingly, I think I have to agree with the defense 8 challenge of that witness and she will be excused. 9 Mr. Carrier presents another problem 10 altogether in that I'm not exactly sure that I buy the 11 factors that he's using as a basis, but the eye witness 12 factor hung through the entire thing and I think one phrase 13 was, I can put my feelings and emotions aside but not my 14 beliefs. Whatever that may.mean to you or me, it's pretty 15 important to him and I think accordingly it's appropriate 16 that he be excused. 17 Mr. Albaugh seems to be pretty straight 18 forward and I don't think any objection was raised. He will 19 remain. So, 1, 2 and 5 shall remain as they show 20 on your list as jurors 6, 7 and 10. Take about five minutes 21 before the next panel? 22 MR. GREER: Sure. 23 THE COURT: Take about five minutes. 24 MR. DAIDONE: Your Honor, I just got the other 25 panel. I haven't started looking through those. We just got 431 1 those before the other panel. 2 THE COURT: I'm sorry. I thought you already 3 had the third panel. MR. GREER: We just got 2 and 3, C and D, 5 before we started here. 6 THE COURT: How long -- I didn't keep track of 7 how long it took you this morning. 8 MR. COX: We'd almost need ten to fifteen 9 minutes at least on a panel. 10 THE COURT: Plan then to resume at about 20 11 after 3. If you're not ready, please signify to the 12 Bailiff. I'm not trying to rush or anything but the nice 13 part of it, after you go about three or foux times you know 14 what you're looking for. The newness has worn off. We 15 understand what we're looking for. 16 In the meantime, Madame Bailiff, advise those 17 jurors accordingly their status. We'1l be in recess for 20 18 minutes or longer, if necessary. 19 (A brief recess is taken and the following 20 proceedings are had at 3:20 p.m. within the presence and 21 hearing of the.jury panel, 411-C, before the Honorable John 22 P. Petzold, Case No. 2000 CR 2945, State of Ohio versus Larry 23 James Gapen, with Leon Daidone, Esq., Sandra Hobson, Esq., 24 and Tracey Ballard, Esq., Assistant Montgomery County 25 Prosecutors for the State, and the Defendant in person, Exhibit 3 Voir Dire (Transcript pages 682-708) I 682 1 We'll take about five or ten minutes before we 2 start the next. I'm sure Mrs. Luke would like to take five 3 or ten minutes before we start back. We'll be in recess. 4 (Whereupon, a recess was taken.) (The panel is 1 James R. Brun, David Paul Nedostup, Robert A. Ratermann, James A. Bryson. John E. Breakall. The following proceedings are had within the 9 'presence and hearing of 412B, the jury panel, at 3:40 p.m. with the Defendant and all counsel present.) IN OPEN COURT: THE COURT: As you gathered from the early part of the instruction, we'll be proceeding in this with 14 relationship to pretrial publicity and the death penalty 15 issues. At the time of the incident involved in this case 16 there was publicity in the print and broadcast media. Do any 17 of you remember reading or hearing anything about this 18 incident, the death of the three victims, Nathan Marshall, 19 Martha Madewell, and Jesica Young, and the arrest of Larry 20 James Gapen, or anything else related to these offenses? 21 JURY PANEL: No. 22 THE COURT: If you do get some specifications 23 jogged in your memory, the question is, can you set these 24 aside and decide this case only from the witnesses who 25 testify and the exhibits that are admitted into evidence. 683 1 You understand that what you've heard or read could be 2 incomplete, may be inaccurate, may be irrelevant or unrelated 3 to any of the issues you may decide in this case. Therefore, 4 can you set aside anything you saw or heard or if you 5 recollect a little bit after and decide this case solely on 6 what you will hear in this courtroom? 7 JURY PANEL: Yes. 8 THE COURT: With regard to the death penalty 9 in Ohio, if a person is found guilty beyond a reasonable 10 doubt of the crime of aggravated murder and guilty beyond a. 11 reasonable doubt of what is known as the death penalty 12 specification, the law provides for the possibility of the 13 death penalty. Therefore, if you are selected as a juror 14 there is a possibility that you will participate in two 15 proceedings. 16 The first would be a proceeding in which you 17 must decide by a unanimous vote whether or not the State has 18 proved the Defendant guilty beyond a reasonable doubt of the 19 crimes charged and the specifications set forth in the 20 indictment. Depending upon your actions in this proceeding, 21 you may be involved in the second proceeding. 22 When the second proceeding takes place, the 23 jury has to consider the penalty to impose. One of these 24 choices is the death penalty. There is probably no more . 25 serious or awesome responsibility which a juror must 684 1 undertake. 2 In a proper case where the facts which you 3 find to be present warrant and the law as I tell it to you 4 permits it, could you join in signing the verdict form which would impose the death penalty? Would your own views on capital punishment prevent or substantially impair the performance of your duties as a juror in accordance with the instructions of law 9 by the Court and your oath as a juror? 10 Counsel will now interrogate you. First of 11 all from the State of Ohio, Mr. Daidone, followed by the 12 defense. 13 MR. DAIDONE: Thank you, Your Honor. 14 VOIR DIRE EXAMINATION 15 BY MR. DAIDONE: 16 Q Good afternoon, gentlemen. 17 A Good afternoon. 18 Q I'm Leon Daidone with the county Prosecutors' Office. 19 In this session here where the attorneys actually get to ask 20 you questions, there's no right or wrong answers. We're not 21 looking for certain answers. What everybody is looking for 22 is your own truthful answers, your own truthful beliefs in 23 certain things. And it is so important that you do that in 24 order for both the State and for the Defendant to get a fair 25 trial. Does everybody understand that? 685 JURY PANEL: Yes. Q I believe when the Judge asked you a question about media, would it be correct no one remembers anything about 4 this case, or does that jar any memories? 5 MR. BREAKALL: I seen it in today's paper. 6 VOIR DIRE EXAMINATION OF JOHN E. HREnKILLL BY MR. DAIDONE: Q Please? A I seen that in today's paper where the jury was being picked or whatever. Q Without telling us anything more that you read, was 12 there an article in the paper, in today's paper, is that what 13 you're saying; you read it? 14 A Yeah. 15 Q Would it be correct it didn't go into any facts or 16 anything in the case? 17 A No, no. 18 Q Would the reading of that article in any way influence 19 you on your role being a juror? 20 A Um um. 21 Q Are you able to put out of your mind what you read today 22 and judge this case on any of the evidence that came from the 23 witness stand? 24 A Yeah. 25 Q You didn't form any opinions after reading that article, 686 1 did you? 2 A No. 3 Q The next area in which I'd like to inquire about 4 concerns the death penalty. The Judge has indicated this is 5 a death penalty case. This isn't a debate for the death 6 penalty or a against, it's a discussion about whether or not 7 in a death penalty case any views each of you might hold and B how those views may or may not affect you as being jurors in 9 this case. Does everybody understand that? 10 JURY PANEL: Yes. 11 VOIR DIRE EXAMINATION OF JAMES RANDALL BRUN 12 BY MR. DAIDONE; 13 Q Mr. -- is it Brun? 14 A Yes. 15 Q You indicated -- When you filled out these forms you 16 indicated that I do not believe that we have a right to take 17 another's life and that you oppose the use of the death 18 penalty in all cases. Additionally, you put down the death 19 penalty should never be used as a punishment statement in 20 which you strongly agree. And that's your beliefs against 21 the death penalty. Would that be correct? 22 A That's correct. 23 Q These beliefs that you have against the death penalty, 24 do they come or are they religious, philosophical, or where 25 do they come from? 687 A Religious. Q And is it in your religion then that you hold that it's one is to be against the death penalty? A Yeah. Q Have you taken part in any church activities concerning opposition to the death penalty? A No. Q Have you been outspoken against the death penalty? A No. Q Now, you have some pretty strong convictions against the 11 death penalty and here you are kind of being questioned about 12 actually being a juror and participating in a death penalty 13 case. And I guess what we need to know is are your feelings 14 so strong that they would influence you if you were a juror 15 in a death penalty case. And that's kind of what we need to 16 talk about. 17 A. Yes, it would be very difficult to choose that option. 18 Q And when you mean difficult, you would have in your mind 19 or beliefs that you have and when the time came to make a 20 decision, those beliefs would in fact influence you in making 21 your choice? 22 A Very likely. 23 Q And would they -- It's pretty obvious your intensity 24 here against the death penalty. Would it prevent you then 25 11 from doing your job as a juror? 688 1 A Um, not necessarily, no. 2 Q Would it influence you? 3 A It might. 4 Q Now, the reason we need to know now is if you get 5 selected as a juror and you're sitting three weeks from now 6 making a decision, in order to be fair to both the State and 7 the Defense we need to know if your beliefs, which appear to 8 be very strong, would influence you such that it would 9 substantially impair your ability to be a fair juror in the 10 case? 11 A I'm not sure. I don't know how to answer the question. 12 Q Well, let's kind of take it in steps. You have strong 13 beliefs against the death penalty? 14 A Yes. 15 Q And these are beliefs you have held religiously for how 16 long? 17 A Probably the last ten years stronger than prior to that 18 just because I was living at home. 19 Q So your position over the years has actually gotten 20 stronger? 21 A Yeah. 22 Q Now, and that was kind of like an outsider just thinking 23 about the death penalty? 24 A What do you mean? 25 Q Well, what an outsider is, now you're sitting here as a 689 1 potential juror in a death penalty case? 2 A Um haunm. 3 Q You appear to have some pretty strong beliefs of what 4 you put down on your form. And what we're looking for, is 5 that going to influence you in making a decision in a case 6 where one of the choices you might have to pick might be 7 death? 8 A Probably would. 9 0 And this influence then, in other words, do you 10 understand this is going to be a two-part proceeding? The 11 first part is the trial phase. And in that phase the Judge 12 would instruct you about what the elements of aggravated 13 murder is and what the elements of aggravating circumstances 14 are. And if the State puts on enough evidence for proof 15 beyond a reasonable doubt as to the aggravated murder, I know 16 it's kind of foggy now because you don't know what they are, 17 but if the Judge were to instruct you, and the State were to 18 prove beyond a reasonable doubt the elements of the 19 aggravated murder and proof beyond a reasonable doubt these 20 aggravating circumstances, with your convictions that you 21 have, are you going to be able to sign a verdict form finding 22 the Defendant guilty knowing that you're going to be into the 23 next phase where the possibility is death, or are your 24 opinions going to impair your ability, substantially impair 25 your ability to do that? 690 1 A I probably could get through the first phase but the 2 second phase is another thing. 3 Q The second phase would actually be the sentencing phase 4 and -- 5 A Right. 6 Q And that's the phase you would balance the aggravating 7 circumstances against any mitigating factors, and the Judge 8 will tell you what the mitigating factors are, but that's 9 going to be your job, your j ob is going to balance these: 10 And if the State proves beyond a reasonable doubt that the 11 aggravating circumstances outweigh.the mitigating factors, 12 then can you sign a verdict form declaring your verdict, you 13 personally sign it, sentencing the Defendant to death? 14 A No. 15 Q So your beliefs would prOvent you from doing that? 16 A Yes. 17 MR. DAIDONE: Thank you. 18 VOIR DIRE EXAMINATION OF DAVID PAUL NEDOSTUP 19 BY MR. DAIDONE: 20 Q And you are Mr. -- help me pronounce it. Is it 21 Nedostup? A Nedostup, yeah. 22 Q Nedostup. You indicated concerning your view of the 23 death penalty that it is a just punishment for a relative 24 crime, depending upon its severity? 25 A Yes. 691 Q So, is your viewpoint -- and you explain that a little bit further? A I believe if you can pull the evidence together, enough evidence, then I could go either way. If the evidence is in support of the death penalty I could go with that. If not, if not enough evidence, then we can't. Q So you are for the death penalty but it would depend on 8 the particular facts of the case? A Right. 10 Q And the law that the Judge gives you? 11 A Um hmmm. 12 Q I notice that you have attended a lot of Bible-type 13 institutes and colleges. 14 A Yes. 15 Q And I don't know where you are religiously with the 16 death penalty. Can you tell me about that? 17 A Sure. I'm a Judeo-Christian from an evangelical 18 perspective, and I'm familiar with Blackstone and Simon 19 Greely and other lawyers, Hugo and others. I have studied a 20 little bit on my own but not in a formal situation. But from 21 a Christian world view with an understanding, I could take 22 and support the death penalty, you know, sure. 23 Q And in the trial phase, the Judge will instruct you what 24 aggravated murder is and the aggravating circumstances. And 25 if the State would prove these both beyond a reasonable 692 1 doubt, are you going to be able to sign your own name to a 2 verdict form and declare your verdict in open court knowing then that you would be moving to the next phase in which the 4 possible punishment is death? 5 A I would make sure that I had the terms defined and 6 understanding what the legal, you know, make sure I'm making 7 an intelligent decision based upon the facts rather than an 8 emotional decision. 9 Q You mean set aside -- weigh all the emotion and set it aside and follow the law? A Right, correct. - Q Now, in the sentencing phase, where you're faced with the question of punishment, if the State proves beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt, are you going to be able to sign a verdict form in ink, come into 17 Court and declare your verdict sentencing the Defendant to 18 death? 19 A Yes. 20 MR. DAIDONE: Thank you. 21 VOIR DIRE EXAMINATION OF ROBERT A. RATERMANN 22 BY MR. DAIDONE: 23 Q Mr. Ratermann? 24 A Yeah. 25 Q On your views on the death penalty, you indicated that 693 you believe it is necessary and that it would be appropriate, 2 with very few exceptions when someone has been murdered. Can 3 you expand on that a little bit? 4 A I don't know, I guess through family and stuff, kind of 5 the old school. Not necessarily an eye for an eye, but I 6 believe that the death penalty is necessary to have that hand 7 up there to keep us all in order pretty much. 8 Q Are your views in favor of the death penalty, would you 9 be able to follow the Court's instructions in that regard? 10 A Yes. 11 Q And in the trial phase where, if the State would prove 12 beyond a reasonable doubt that the aggravating -- prove 13 beyond a reasonable doubt an aggravated murder and prove 14 beyond a reasonable doubt an aggravating circumstance, would 15 you be able to sign a verdict form in ink and declaring your 16 verdict in open court knowing that you would be moving to the 17 next phase where the possible punishment may be death? 18 A Yes, if all the facts led me in that direction. 19 Q Based upon the facts that are presented in Court and the 20 Court's instructions? 21 A Correct. 22 Q You talk about a hammer that society has. Are you 23 saying that you are so pro death that you would just find 24 the Defendant guilty? 25 A No. 694 1 Q Or would it have to be beyond a reasonable doubt and 2 following the Court's instructions? 3 A It would have to be beyond a reasonable doubt and 4 following the Court's instructions. Yeah, I'm talking not -- I'm just talking about a hand up there that keeps an order 6 that we need to maintain in our society, I believe. Q And in the sentencing phase, do you understand that the death penalty is not automatic if guilt is found, you still have to have the balancing that you would to as a juror, balancing any mitigating factors the Court instructs you on and also the aggravating circumstances? 12 A Yeah. 13 Q And your feelings about the death penalty, are they such 14 that you would automatically vote guilty -- 15 'A No. 16 Q -- or vote for death? 17 A I'm not a vindictive person. 18 Q You would weigh and balance and follow the law? 19 A Right. 20 Q And if the State would not be able to prove beyond a 21 reasonable doubt that the aggravating circumstances outweigh 22 the mitigation, would you be able to find something less than 23 death? 24 A Certainly. 25 11 Q And the reverse, if we were able to prove that the 695 1 aggravating circumstances outweigh the mitigation beyond a 2 reasonable doubt, would you personally be able to sign a 3 verdict form and come into Court declaring your verdict 4 sentencing the Defendant to death? 5 A I believe if all the facts that were handed to me and it 6 was all beyond a reasonable doubt, then I believe that I 7 could do that if it had to be done. B Q Again, we know it's kind of hard because we haven't 9 defined terms like aggravated murder or mitigation. We 10 haven't defined reasonable doubt. But whatever those things 11 are that the Judge tells you,.you could follow those? 12 A Yes. 13 Q Thank you. 14 VOIR DIRE EXAMINATION OF JAMES A. BRYSON 15 BY MR. DAIDONE: 16 Q And Mr. Bryson, good afternoon. 17 A Good afternoon. 18 Q You indicated on your form that I approve for cases 19 where a death is caused on purpose, whether premeditated or 20 not, and in cases where an officer killed while performing 21 his or her duties? 22 A Yes. 23 Q Do you understand, and everyone has a notion, a 24 potential juror has a notion of what kind of cases are death 25 11 penalty cases, and I think when asked your view, that's what 696 1 you put down? A Right. Q And you realize though that the law might be something different of what is a death penalty case, do you understand that? A I know that now. 7 Q What your view is and what the law is, the type of case may be different? 9 A Um hmmm. 10 Q You have to answer. 11 A Yes. 12 Q What we're looking for is, are you going to be able to 13 put aside your beliefs and your opinions concerning the death 14 penalty and follow the Judge's instructions in this case when 15 deciding this case? - 16 A When you say put aside my opinion, are you talking about 17 what I believe is justifies the death penalty? 18 Q You may have an opinion of what you think warrants the 19 death penalty, you may have a view. And when the Judge 20 instructs you, that might not be the case, that what you 21 think is a death penalty case may or may not be under the law 22 the Judge gives you. What we want to know is can you put 23 aside what you think a death penalty case is and judge the 24 facts on what the Court tells you, the instructions the Court '...... 25 gives you concerning death penalty cases? 697 1 A I'm not sure that I could because I have -- a long time 2 to go through your mind trying to decide what is, what is 3 something that would deserve to•have someone else put to 4 death. And I think I have kind of come to some conclusions 5 in my own mind. I can't sit and say, yeah, I can put that 6 aside. I don't know if I could. I don't know. I'm sorry. 7 Q No, that's what we need to know. So you're saying that 8 your personal views on the death penalty might prevent you 9 from following the Court's instructions? A It would have to be, I guess I would have to have my ideas or my views changed is what I meant to say. I mean, for my concern. Q So you understand, no one's asking you to wipe out your 14 opinion. I mean every one, you know, people aren't blank 15 slates. You come in here with your own feelings and 16 opinions. What we need to know is, can you set those aside 17 or are your opinions going to influence you and prevent you 18 or substantially impair you from following the Court's 19 instructions? A I think in one way it will and one way it won't. In one way of determining guilt, I think I could follow whatever it was that was specified. But in regards to determining whether or not I could sign something that says this person 24 needs to die or not to die, I don't know if I could follow 25 that because that's something I, you know. 698 1 Q So in the trial portion, your personal opinions or 2 feelings you have won't influence you to the point where you 3 would be unable to follow the Court's instructions? 4 A Right. 5 Q But in the -- and if the Court, if the State in the 6 trial phase finds, proves its case beyond a reasonable doubt 7 and proves all of the elements of aggravated murder, proves 8 the elements of the aggravating circumstances, the juror, you 9 would take part in the sentencing phase, do you understand 10 that? 11 A Not until this all started, I don't think so. 12 Q But you would take part in that and it would be your job 13 in that sentencing phase to weigh any aggravating 14 circumstances against any mitigation that the Court would 15 instruct, it would be your job? 16 A Right. 17 Q And I think what you're trying to tell us is that in 18 that regard, in the sentencing phase where the possibility is 19 death, your opinions are such that it could influence you 20 that you may not be able to do your job? 21 A Sitting right here right now, I'd have to say yes, T 22 agree with what you just said because I don't know what all 23 the facts are. And for me to sit here and say I wouldn't be 24 biased one way or the other, I'd feel would be lying right 25 now. I don't know. 699 1 Q It's important because two weeks from now or three weeks 2 from now you might be in that position? 3 A Right, I know. 4 Q And if your opinions that you have and feelings you have 5 about the death penalty are such that they would prevent you 6 from fulfilling your duties, then we have to know that now, 7 or if they would substantially impair you, affect you, such 8 that you couldn't do your job, we have to know that. 9 A If you want a definitive yes or no, then I would have to 10 say that it probably would. I would not be able to just, you 11 know, just -- It really depends on what all is presented to 12 me as like is it such a heinous crime, that type and nature, 13 I don't know. If it was -- 14 Q That might not be what the law requires. The law's 15 going to tell you certain instances when the death penalty 16 applies and when it doesn't, not your own view. 17 A Right. 18 Q So you're going to have to be able to follow the law the 19 Judge gives you, not have your feelings affect your decision 20 making powers. 21 A And with that in mind then, I would have to say that I 22 wouldn't be able to put that aside, because it's something I 23 have to live with, not just for three years but for the rest 24 of my life. 25 Q So if the State were to prove that the aggravating 700 1 factors outweigh the mitigation beyond a reasonable doubt, 2 your feelings might affect you such that it would prevent you 3 from signing the verdict form and sentencing the Defendant to 4 death? 5 A If it was different from what I believe, yes. 6 MR. DAIDONE: Thank you. 7 VOIR DIRE EXAMINATION OF JOHN E. BREAKALL 8 'BY MR. DAIDONE: 9 Q Good afternoon. Mr. Breakall? 10 A Yeah, correct. 11 Q You indicated on your form that you are against the 12 death penalty? 13 A Yeah. 14 Q And you also indicated that pretty strongly that you 15 oppose it in all cases? 16 A Yeah. 17 Q And on the next sheet when you -- there's a statement 18 about the death penalty should never be used, you strongly 19 agreed with that sentence? 20 A Yes. 21 Q Your feelings that you have, these strong feelings 22 against the death penalty, where do they come from? 23 A I don't know. I guess I just don't believe in it, 24 because like you have been talking about, ain't no way I 25 could sign for somebody, you know, going to put him to death 701 1 or something, and I didn't have nothing to do with nothing 2 like that. 3 Q You don't want anything to do with something like this? 4 A No. 5 Q Well, we're asking your opinion and now here you are 6 sitting as someone that might be selected to do this. And 7 you're telling us what,then, that you -- ? 8 A I just don't believe in -- I don't know. I just 9 couldn't, you know, sign a paper saying that somebody was to 10 be put to death or something. I wouldn't want that on my 11 mind. 12 Q And how long have you held these beliefs for? t 13 A I always have. 14 Q Your whole life? 15 A oh, yeah. 16 Q So while you have these beliefs, what you're telling us 17 is that they would influence you in your decision making such 18 that you could not sign --- it would prevent you from signing 19 a verdict form sentencing someone to death? 20 A Right. 21 Q And if you were asked then to weigh and balance the 22 aggravating circumstances against the mitigation in the 23 sentencing phase, your opinions would influence you such to 24 prevent you from doing that? 25 A Yup. 702 1 MR. DAIDONE: One moment. 2 BY MR. DAIDONE: 3 Q Now, Mr. Breakall, because of your strong beliefs, if 4 the State were to prove beyond a reasonable doubt that the 5 aggravating circumstances outweigh the mitigating factors, 6 would you be able to sign a piece of paper, your verdict 7 form, and come into Court and declare your verdict in open 8 court sentencing the Defendant to death? 9 A I don't think I could. 10 MR. DAIDONE: Thank you. 11 THE COURT: Mr. Greer? 12 VOIR DIRE EXAMINATION 13 BY MR. GREER: 14 Q Well, I expect, as you remember from a little while ago, 15 my name is Dave Greer. Bobby'Joe Cox is my co-counsel. 16 We're here representing Larry Gapen in a case that has 17 provided you with probably the toughest job interview you 18 have been through in your respective lives. We appreciate 19 your candor. What has happened with the five of you is what 20 happens on every group that we have in here. 21 This is a subject, this issue of capital punishment, 22 that people come to Court with strong feelings on. We're all 23 human. We have them. And they range the gamut from Mr. Brun 24 to Mr. Bryson on the two extremes of feelings that you can i 25 have. It's important to the State, it's important to the 703 1 Defendant that you be as honest and candid as you have been. 2 VOIR DIRE EXAMINATION OF JAMES RANDALL BRUN 3 BY MR. GREER: 4 Q I gather, Mr. Brun, there's no sense my asking you a 5 zillion questions at this point because you can't look me in 6 the eye and say that if push comes to shove and you reach 7 that point in the case where you would have to make a 8 decision on sentencing, that you wouldn't be influenced by 9 your beliefs rather than what you heard in Court. Is that 10 right? 11 A That's correct. 12 VOIR DIRE EXAMINATION OF JAMES A. BRYSON 13 BY MR. GREER: 14 Q And I gather, Mr. Bryson, at the other end of the 15 spectrum, you can't look me in the eye and say that if push 16 came to shove and you got down to the sentencing side of this 17 case, you wouldn't be influenced by the strong feelings you 18 brought to Court? Fair enough? A That's correct. Q Mr. Breakall, I guess you're kind of in the same category is what you're telling us? MR. BREAKALL: Correct. Q So I'm left with you two fellows to talk to, and let me 24 do that a little bit. And let me add something that hasn't 25 been mentioned up to this•point, and that is this: In this 704 1 case it is a fact that on September 18, 2000 Larry Gapen did 2 kill three people, and it is a fact that it was a violent 3: killing. The issues in this case, and that's the kind of 4 thing that gets people, not just emotionally but in the 5 solar plexus. And there's going to be emotional evidence in 6 this case. 7 The issues in this case are going to be issues of 8 whether that crime rises to the level of aggravated murder. 9 Now at this point; you're going to have to wait until the 10 Judge tells you what aggravated murder is, and what the I1 essential elements of that are. And you know it is going to 12 be the State's burden to prove each of those elements beyond 13 a reasonable doubt, which is the highest burden of proof we 14 have in the law. 15 The question now becomes, can the two of you, or the two 16 I have got left to talk to, sit as jurors and use your 17 intellect, your heads, and weigh the evidence, hold the 18 prosecutor to that burden of proof, knowing that this man has 19 committed some pretty serious crimes, and try this case and 20 not have a spillover effect from either the feelings that 21 you have brought into the case or the fact that he did kill 22 those three people. Do you think you could to that? 23 MR. BRE.AKALL: It would be tough. 24 Q Did I say it wouldn't? 25 MR. RATERMANN: It would be very difficult. 705 1 Q And I understand that. And that's why I put the 2 question to you as I do, because it is a tough thing. It 3 means setting aside your feelings, setting aside what you 4 bring with you into the courtroom and following to the letter 5 the law that the Court gives to you, wherever it leads you. 6 VOIR DIRE EXAMINATION OF DAVID PAUL NEDOSTUP 7 BY MR. GREER: 8 Q Mr. Nedostup, do you think you can do that? 9 A Sure can. 10 Q Mr. Ratermann, I'll give you a couple minutes to think 11 it over. And let me carry you both to the next stage. 12 Because you have to be able to look me in the eye and say 13 that if you find, following the law, that the State hasn't 14 proven aggravated murder, you'll bring in a verdict of not 15 guilty on the aggravated murder charges. Now, that doesn't 16 mean that's going to happen. 17 If you find that they have proven that and we go on to 18 the next phase, there's going to be a lot of evidence in the 19 next phase of what they call mitigating factors. There's 20 going to be --- and at this point that's a label, and you 21 don't really know what is contained under that label. And so 22 it's a little unfair- But the Court is going to tell you 23 what it is and you'll hear evidence of that. It's obviously 24 going to be evidence about Larry Gapen and his life and so 25 forth and so on. 706 1 And you're going to be told that there are, if it 2 reaches that stage, there are certain aggravating 3 circumstances. The Court, again, will tell you what the 4 aggravating circumstance or circumstances are. And in that 5 stage, don't ask me how it came about this way but this is 6 what the law is, that the State will have to prove beyond a 7 reasonable doubt to you that the aggravating circumstances 8 outweigh those mitigating factors before you can impose the 9 'death penalty. Now again, it a tough job,, it's not as 10 dangerous as steel working but it's a tough job nonetheless. 1.1 And that's what this is. This is a job interview. Mr. 12 Nedostup, do you think you can do that job? 13 A Sure. 14 Q If you fine that the State doesn't prove that, even if 15 they have proven aggravated murder, you could bring in a 16 penalty less than the death penalty? 17 A Sure. 18 Q Mr. Ratermann, where are you on all this? Do you think 19 you can do the job? 20 MR. RATERMANN: I believe I can do the job, 21 yes. 22 Q All right. Then that finishes my job interview. 23 THE COURT: Gentlemen, you'll be excused now. 24 We thank you for your candor and for your participation in 25 this. You'll be taken in the custody of the Bailiff for a 707 1 few minutes while we finish some details in here. Please 2 remain in the place the Bailiff designates you to stay. 3 When we finish this, we will advise you of 4 basically two things. One, those of you who are going to 5 still be around, and whether or not those of you who are not 6 around in this particular case may be going some place else 7 to another jury. So please follow her instructions. 8 We'll be concluding this part of it and you 9 are excused. 10 (The following is out of the presence and 11 hearing of the jury. The Defendant and all counsel are 12 present.) 13 IN OPEN COURT: 14 THE COURT: Okay. 15 MR. DAIDONE: Your Honor. 16 THE COURT: Yes. 17 MR. DAIDONE: The State would ask that the 18 following jurors be excused for cause: James Brun. He 19 indicated that he has strong beliefs, both in his 20 questionnaire and in open court, against the death penalty 21 such that it would influence him and he couldn't sign a 22 verdict form which the law requires in the second phase. 23 The State would also ask that James Bryson be 24 excused. Mr. Bryson likewise indicated that in the second 25 phase he would have to say that his personal opinions would 708 l prevent him from signing a verdict form if the law differed 2 from his own beliefs. 3 Also, Your Honor, John Breakall likewise 4 indicated that he has strong feelings against the death 5 penalty and there's no way he could sign a verdict form 6 sentencing someone to death, even regardless of whether or 7 not the State had proven its case in the second phase beyond 8 a reasonable doubt. 9 THE COURT: Mr. Greer. 10 MR. GREER: Your Honor, there may be a couple 11 of points in the course of the trial where I'll,disagree with 12 the State of Ohio, but right now we're not at one of those 13 points. I would agree with the respect to each of those 14 three jurors, that they should be excused. And I have no 15 challenge to the other two. 16 THE COURT: Court finds that the challenges 17 made by the State and agreed to by the Defense in respect to 18 Mr. Brun are accepted, and accordingly he will be excused. 19 Mr. Nedostup and Mr. Ratermann will be accepted to go to the 20 next stage. And Mr. Bryson and Mr. Breakall for the same 21 reasons as offered of record and concurred.in by the Defense 22 shall likewise be excused. 23 I guess we'll have one more panel and then 24 we'll call it a day. 25 Exhibit 4 Voir Dire (Transcript pages 2182-2220) 2182 1 MR. DAIDONE: I think as prospective jurors, 2 you know what we're looking for; someone that can be fair and 3 impartial. I always ask this question at the end of my voir 4 dires. Is there anything anyone thinks they need to call 5 something to the Court's or counsel's attention that might 6 prevent you in this particular case from being a fair and 7 impartial juror? 8 JURY PANEL: (No response.) 9 MR. DAIDONE: Thank you. THE COURT: Mr. Greer. MR. GREER: Thank you, Your Honor. VOIR DIRE EXAMINATION BY MR. GREER: 14 Q Well, as you all found out when we were all 15 significantly younger, my name is Dave Greer and you have 16 already embarked upon a process where some of you are 17 starting to feel it's you rather than Larry Gapen on trial. 18. I assure you it's not the case. It's too bad it's as tedious 19 as it is but it's necessary. But to quote Mr. Daidone, we 20 don't want this case decided in a squirrel fashion. We want 21 it decided squarely on the law and the evidence. Fair 22 enough? 23 Early in Mr. Daidone's questioning when he was asking you about the presumption of innocence, Mrs. Reynolds, you asked a very intelligent question and that was, how does the 2183 presumption of innocence play in a case like this where the Lm., 1 2 Defense lawyers told everybody in the room that Larry killed three people. And Mr. Jewett kind of chimed in. And I 4 suspect the thoughts have been rattling around a few other 5 heads here. So, let's kind of address that. 6 Is there anybody in this room who doesn't think that 7 people who perform criminal acts ought to be convicted of the 8 acts they perform rather than acts they didn't perform? 9 Does that make sense to you? 10 In other words, that's the,issue in this case. Not 11 whether Larry killed people, but whether what happened there 12 is what the law defines as aggravated murder. Can you all, 13 is there anybody that doesn't understand that or anybody that 14 has a problem with it? 15 J'URY PANEL: ( No response.) 16 BY MR. GREER: 17 Q The simple proposition that we're all here to start with 18 is the proposition that people who commit criminal•acts ought 19 to be convicted for what they do, not for what they didn't 20 do. Anybody got a problem with that? Because that's what 21 this case is going to be about in the physical phase. 22 Anybody got a problem with leaving it to the law of Ohio as 23 given to you by Judge Petzold to define for you what the essential elements of aggravated murder are? JDRY PANEL: (No response.) 2184 BY MR. GREER: 2 Q Hearing an awful lot of silence out there so I assume nobody got a problem about that. So that's what this case is 4 about. 5 Anybody out there, you have heard Mr. Daidone tell you 6 that as the Defendant sits here he's got the presumption of 7 innocence. That's true. That's the way these cases work. 8 All of you sitting here, looking at me, looking at my client, 9 you know he's killed three people. Anyone here that can't 10 get that out of their mind? And as far as the crimes he's been charged with in this indictment, starting with the presumption of innocence, which means that the State is going to have to prove those particular crimes each and every element of them, beyond a reasonable doubt, anybQdy got a 15 problem with that exercise? 16 MR. CAPERS: Yes, sir, and -- 17 THE COURT: Mr. Capers. 18 VOIR DIRE EXAMINATION OF WILLIAM CAPERS 19 BY MR. GREER: 20 Q I'm sorry. I have got so many sheets here I'm getting lost in the paper. A To me it seems it's so many weeks to be doing something. Q That's the question I'm trying to elicit from you and you recognize that there are different types of homicides under the law of Ohio? 2185 A Yes. Q Start with that. If what Larry did constitutes aggravated murder, and then the State proves that beyond a reasonable doubt, then it's the duty of the jury to convict 5 him of aggravated murder. If, however, what he did 6 constitutes a different crime, for example, murder, it's the duty of the juror not to convict him of aggravated murder because that's the crime he committed. I realize that's a 9 tough concept because lay people come to the cases that it's 10 a did-he or didn't-he kind of situation and that's not in this case. Mr. Capers, does that make sense to you? And if not, this is the time to explain it. That's why we're asking these questions. 15 A I don't know. I came down here with the thought that he 16 was innocent, but you said he wasn't so you haven't answered 17 my question. I guess. I don't understand. 18 Q Let's focus on the word it in what you said. You said 19 that I told you he did it. What I told you is that he killed 20 three people. That's the it in this case. But the question 21 that you'll have as jurors is not whether he did it. The 22 question you'll have as jurors is whether he committed 23 aggravated murder? 24 Where it constitutes aggravated murder, the Court's going 25 to tell you what the,elements of that are. The Court may 2186 tell you what the elements of other crimes are as well and 2 with respect to each and every crime that you have to 3 consider. The question for the jury is not whether he did 4 something else but whether he committed that crime. There's 5 a difference in the law between murder and aggravated murder 6 and there are differences in the law between various other 7 offenses, and that's why this is an extra tough job for 8 jurors because I don't bring somebody who comes to Court 9 innocent of any crime with that kind of presumption of 10 innocence. What Bobby Joe Cox and I bring to you is a man 11 who is innocent of the crimes that are charged unless and 12 until the State proves beyond a reasonable doubt each and 13 every element of those crimes. If he's guilty of other 14 crimes, then he deserves to be convicted of those other 15 crimes and I realize this is a difficult decision but does-it 16 make sense to you, Mr. Capers, at this point? 17 A Not really. I mean sounds like you have the burden of 18 proof, the defense. 19 Q No, well let's pursue it until we understand it. Mrs. 20 Reynolds, let me ask you a question since you got your hand 21 up? 22 MRS. REYNOLDS: Well, I understand that 23 there's a difference betweeen aggravated murder and murder. My only concern, I can follow the law and look at each thing and judge whether or not he met those criteria. My concern I 2187 1 was; is there a matter he did aggravate murder or he's not 2 guilty or will the jury have other options to decide 3 aggravated murder or murder or is this an all or nothing kind of deal knowing he killed three people. I'm not sure okay, 5 he's free but I would want to be able to see the different 6 types of things, be able to see, does he fit in any of these 7 other catagories or to make that judgment. Q All right, so you followed your intelligent question 9 with Mr. Daidone with an intelligent question for me. That's a fair question I'm sure it's rattling in Mr. Caper's head and others too. The answer to your question is that Judge Petzold will give you all the law necessary to try this case and the law is good enough to be designed that people who 14 commit crimes don't walk the street. Is that a fair enough 15 answer for you? 16 A Yes. 17 Q Mr. Capers let me swing back to you because I haven't 18 got this worked out with you as yet but do you understand 19 that the law is designed so that people will be convicted of 20 the crimes that they commit according to law, rather than 21 crimes that they don't commit. Fair enough? A Fair enough. Q Do you think you can do that or if you find that Larry is, for e.xample, guilty of murder but not aggravated murder would you say to hell with it if the prosecutor wants 2188 1 aggravated murder I'll give it to you? 2 A I don't honestly no how to respond to that. I don't 3 know what aggravated murder means. 4 Q That's a problem that-- 5 A I'm sorry you won't say but whatever case is presented, 6 it's got to make me feel strongly one way or the other. 7 Q This is the case that is going to have a strong a repulsive impact emotionally on anyone that hears it. And 9 maybe there is a question for all of you because this case is 10 going to involve a violent act, as you know, going to involve 11 grusome pictures, going to involve testimony that is 12 repugnent to most people. It's going to involve the 13 unpleasant side of life rather than a Walt Disney movie. 14 There's no question about any of that. But you're all 15 grownups and the question is, whether you can decide this 16 case with your mind under the law or just have a visceral 17 reaction and say whatever the prosecutor wants, the 18 prosecutor gets? 19 And I'm not asking you easy questions, I understand 20 that. This isn't an easy case but is there anyone here that 21 will be so put off he emotionally, let's use that phrase, by 22 what you know is going to be grusome pictures and unpleasant 23 testimony, testimony about things in life that we'd rather 24 not spend our time carrying on about as people in a polite society. Is there anybody that will let the emotional impact 2189 of that sway them from the intellectual job we're defining for you? 3 Because if there is, now's the time to leave the train, 4 because that's the train you'll be on as jurors? Mr. Capers, do you think that would be too tough for you? 6 A Yeah, I think so. 7 Q And the real question is: In this kind of a case as it's 8 thus far been defined for you, at this point you don't know 9 what the law is as to the various crimes going to be charged because Judge Petzold is going to tell you that and everything, you're going to have to live with what he tells you but you think the emotional impact of what happened here will make it impossible for you to be a fair juror? 14 A Three deaths is pretty significant. 15 Q Nobody's saying that it`s not significant but is it so 16 significant you would tend not to pay attention to the law, 17 just return whatever verdict the prosecutor asks of you? 18 A I don't know if I would follow the law or not in all 19 honesty. 20 Q You think the work we're talking getting into here would 21 substantially impair your ability to be a fair impartial juror? A I think it will. Q You have heard it phrased over the last week? All right I appreciate your candor. I think that's not a 2190 1 question just for Capers, it's a question for each and every 2 one of you. 3 A Because each and every one of you who gets upon this 4 train, is part of this jury is going to take an oath to do 5 this in accordance with law and the law is people should be 6 convicted of crime they do rather than crimes they don't do 7 regardless of whether you want to invite them over for dinner 8 or not. All right you have got a problem, is it Mr. Nolan. 9 You got it. A I'm afraid I can't do this. Q You think-the impact of what happened here is going to be too much for you to follow the law? A Follow the law, I understand wholeheartedly the 14 different levels of murder and what you twice are getting 15 into but I don't think I can do it and be fair enough. 16 Q And I donTt want to start a stampede here, you 17 recognize we have got to find.12 jurors who can do the job 18 that the law requires of them so on the one hand, I 19 appreciate your candor, Mr. Capers. I appreciate the candor 20 of Mr. Nolan though and I appreciate the candor of anybody 21 else getting ready to tell me the same thing. But I trust 22 there's nobody in the room who doesn't recognize how serious 23 this is and none of this should be used as an excuse to avoid an unpleasant task. That's the responsibility of each and every one of us to perform if we can do it. Fair enough? 2191 Let's stick with the topic that we have got. You know this 2 was a terrible event, three people killed in a violent event. 3 You're going to be subjected to grusome pictures and 4 subjected to emotional testimony and you're also starting out 5 with the fact there's'no question but that Larry killed these 6 people. Is there anyone else on this side of bar that feels 7 that they cannot do the task fairly as a jury to make sure 8 that Larry doesn't get convicted of any crime other than a 9 crime the State proves beyond a reasonable doubt he 10 committed? You have got that problem, do you, and it's Mrs. Talmadge? A Yes, sir? VOIR DIRE EXAMINATION OF MRS TALMADGE BY MR. DAIDONE: 15 A I think when we were interviewed the first time I think I 16 get emotionally involved with•the children. I don't think I 17 could be fair about it where I work. 18 Q I gather that's been reinforced by what you heard today? 19 A Yes, sir. 20 Q Let me ask you the ultimate question which is in all 21 honesty, can you do your job as a juror in this case and 22 follow the law, hold the prosecutor to burden of proof or will the emotional side of this case impair it for you? A I don't think I could. I don't think I could be fair. Q Let me get your juror number, 54, are you not? 2192 A Yes, sir. Q And I realize this is a tough question as I think I told you all last week when we had questions. I'm not here to embarrass anybody, and all I ask of you is as potential jurors is your honesty and your candor but we have to deal with the cases we have to deal with and I think you have a 7 fair idea•of what kind of case you have to deal with here. 9 Anybody else that feels the emotional impact of people who 9 are going to be emotional witnesses, view grusome pictures of 10 the fact of the killings--is it going to make it impossible 11 for them to serve? Mrs. Martin, you're in that category? 12 VOIR DIRE EXAMINATION OF MRS. MARTIN wo 13 BY MR. DAIDONE: 14 A I have a child eleven years old and I do think it would be difficult to hear testimony especially in that particular case it would be very difficult. Go home see my child. I don't know that I can keep my emotions. I don't think I can be clear on that matter. Q Anybody else that has that problem kind of like, this 20 isn't exactly a wedding. I won't call it that. Speak now 21 or forever hold your peace moment. Mrs. Pickle? 22 MRS. PICKLE 23 A My problem is I don't deal with that group thing: 24 THE COURT: Can't hear you, ma'am? 25 A I don't see myself being able to view pictures without 2193 1 intense emotion. I don't even watch that type of TV anyway 2 and I think that I might have to look at it. MR. DAIDONE: 4 Q My guess is those pictures have an impact on,everybody. 5 Everybody that sits on this jury will see them. That's not 6 the question. Everybody here will not have much fun looking 7 at this scene. The question is whether you can set that 8 aside and discharge your responsibilities as a juror. That's 9 the way the law works and if you can do that, then you're 10 qualified as a juror. If you're substantially impaired from 11 doing that because of the nature of the material that we're 12 going to have to go through in this case, then you're not. 13 And we're here to get jurors not to throw them out the door 14 and your answer is? 15 A To coin a phrase, I would try to be fair but like I said 16 I had to express that to you. 17 Q Well, I think everybody whtl serves as a juror is going to 18 try to be fair. I don't have any quarrel with anybody in 19 this room having that feeling. The question is: Can you make 20 the comm.itment that you can apply the law that Judge Petzold 21 gives you to make sure that Larry Gapen is convicted for what he did as the law defines it rather than for something he didn't do? A I will try. - Q You probably remember last week when somebody says try 2194 1 then the lawyers kind of stiffen up saying try isn't good 2 enough. Everybody wants to be fair. That's the human • 3 attitude toward this thing. The question is can you make 4 the commitment that whatever visceral impact the evidence or 5 the subject matter of this case or the fact that Larry killed 6 three people has on you it won't interfere with your ability 7 to-- you'll force the prosecutor to prove every essential element of aggravated murder and other crimes charged beyond a reasonable doubt? A Yes. MR. DAIDONE: MR. GREER: Thank you. MR. GREER: Anybody else have a concern? You are Mr. Saylor last one was 46. 15 MR. GREER: Mr. Saylor. 16 Q The more information you put out about this here you say 17 how violent gross stuff like this. It's just making it awful 18 hard for me to maybe follow the extent of the law. It's 19 almost like, well, the man is already going to get convicted. 20 It's as far as I'm concerned almost we're into the second 21 phase of it now already. I don't know it just when you talk about such violent crimes and things, it's going to be awful hard for me to render, you know. Q Your juror number is? A ' 33. (Mr. Saylor) 2195 r 1 Q It's going to be hard for me to get that out of my mind, 2 hear everything that's happened and it would be hard to 3 necessarily go according to what maybe you all might be or 4 what not, because you have already stated the fact that it's 5 a violent crime and all, I'm just afraid I'm not able to put 6 that out of my mind. 7 Q I understand that. I think you understand it's my 8 responsibility to let people know that it's a hard job so you 9 don't find that out when it's too late to do anything about it. It's also my responsibility to let each and every one of you know what the nature of the job is. In the first phase, the issue is going to be whether the State can prove beyond a reasonable doubt that Larry Gapen committed the crime of 14 aggravated murder, which is what the State charges in the 15 indictment or whether he committed some other form of 16 homicide. That's the issue and you know, it is a hard job 17 but this is an interview for a hard job, and if you can't do it, now's the time to tell us. A To be honest with you I think I really have a hard time being forcefull. Q Do you think your judgment would be so impaired by the 22 fact that what you heard thus far and what you can expect to 23 encounter,the emotional impact of what you expect to 60 24 encounter, you would be impaired from following the law Judge 25 Petzold gives you and simply return whatever verdict the 2196 Prosecutor asks? A I believe that it would be possible to get swayed away from directions the Judge gives. 4 MR. GREER: All right, as you know, I'm trying to be candid, I'm expecting you all to be candid with me. That's what this part is all about. I gather from what you're saying you don't feel you could be a fair, impartial juror in this case as the law requires, is that fair to say2 9 MR SAYLOR: 10 A Yes, sir. 11 MR. GREER: All right. 12 MR. GREER: Now, I hope I have exhausted the 13 hands, but if I haven't, don't hesitate to raise them because 14 this is a serious job as you have discovered. You're in a 15 situation that you have got to envision what you're going to 16 be required to do. 17 VOIR DIRE EXAMINATION OF MR. GARLITZ 18 BY MR. GREER: 19 Q Juror 32 you have got your hand up? 20 A I might have a problem, I have two small children at home. Difference between aggravated murder and murder--if somebody murdered my children I'd certainly want the people to receive the death penalty. I have strong beliefs about that. I also believe that the country has a very violent problem and you can murder somebody and be released out of 2197 jail in ten years. I don't agree with that at all. I have 2 emotions also in that regard. 3 MR. GREER: 4 Q And do you think those facts and the fact that you have 5 got two,young children would cause you at the end of the game 6 to say, I don't care what the law is, I'm going to convict the guy of aggravated murder like the prosecutor wants? 8 A I'm not going to say. 9 Q That it might happen your judgment would be impaired to 10 have fair and impartial? A Might be impaired. Q Do you think it would be substantially impaired so you should not be qualified as a fair and impartial juror? A Yes, I do. 15 MR. GREER: Thank you for your candor. 16 THE COURT: Have we exhausted this troublesome 17 subject? 18 MR. GREER: Yes, sir. 19 MR. DAIDONE: Your Honor I'm going to object 20 and ask to approach. (The following discussion is had at 21 side bar out of the hearing of the jury.) MR. DAIDONE: in all fairness, I understand the defendant's ability to have an open voir dire and to obtain jurors that are impartial; however, what is going on here is we are really going over subject matters that we'have 2198 already gone over during individual voir dire. It was extensive voir dire during the individual voir dire last week about emotional aspect of the case, about the three victims, one's a little girl, did you recall? What we're doing now in a different way is the same topic and we're finding jurors now who before said they could keep an open mind now say they can't.. It.seems everybody is jumping on the band wagon, 8 opening up the floodgates to this. It's interesting when I asked a question earlier in my voir dire about emotion, and 10 people brought up the idea they could not sign a verdict, 11 defense counsel was quick to object. I was trying to get at 12 the same subject matter going over it in individual voir dire. Defense counsel is doing the same thing, different guys, but exactly gone over last week and the State's going to object if this keeps going on. MR. GREER: Well, Your Honor, I have not mentioned anything at all in my questions but what I'm trying to do, we started and these questions relate to the presumption of innocence which was the start of Mr. Daidone's voir dire as well. I have told them they're going to see 21 grusome pictures, and I feel I have got to see what kind of reaction I get to that, and if I don't do it now we're going to get these reactions in the middle of the trial when it's too late to do anying about it. I think I have fairly framed what the issue is. I have done my best to tell them 2199 1 what their responsibility is as citizens to try to avoid a 2 stampede. I'm down to the last hand at this point. 3 THE COURT: Okay. Now, this issue has to do 4 with whether or not jurors can be fair in dealing with 5 separation between the two charges, charges of murder and aggravated murder. Excuse me. I see a run toward this, Mr. Greer. I warned you about throwing a monkey wrench in the works. It all boils down to the issue that Mr. Greer has come on occasion and doesn't know where he's at. Had me question and let this guy in but the defense wanted him. Now I'm going to have to let him out. Yet he has managed to put us in a rather difficult position. I think Mr. Greer has the duty to make a differentiation between these two serious 14 matters. I think go on a little bit longer. We can finish 15 this issue because if we don't and take a rest, all the work 16 we have done up to this point may go up in smoke. I'm sorry 17 to put it that way but there is no other way to put it. This 18 is a very serious case, a very difficult case, because of the way it sets up so consequently, voir dire and resulting matters become very difficult for lay people to understand. I know this charge is now on the basis of facts. They must deal with the charges that are there and the law as I give it to them. The question before the house is whether they can emotionally deal with it. It's a simple yes or no question. Shortly put it to rest. 2200 MR. GREER: Do you want to take the afternoon break after we finish this topic or shall we press on? Doesn't make any difference to me. THE COURT: Do you want me to put that--do you want my cautionary instruction? 6 MR. GREER: No, I think your instruction is fine. 8 THE COURT: I'11 do it now and we'll try to 9 take a break or this will be a route. Thank you. (The 10 following proceedings are within the hearing of the jury) THE COURT: Ladies and gentlemen of the prospective panel, as a result of some of the questions that have a been asked and discussions between both the Plaintiff and Defense counsel the Court is obliged to give you the 15 following cautionary discussion. This matter involves, as 16 it does in any criminal case, the determination of whether or 17 not the Defendant beyond a reasonable doubt committed 18 certain conduct. That conduct is defined by instructions 19 that the Court will give you. This is, as you have gatbered, 20 going to be a disagreeable case from the standpoint of the 21 factual pattern. That really doesn't have anything to do 22 with it. The question that we're driving at here is whether 23 or not you can fairly and impartially make a determination 24 from the evidence as presented to you, that appears from the -25 witness stand here, and from any exhibits that you will see, 2201 whether or not the Defendant committed conduct,whether it's 2 A, B, or C. You may have choices in that regard, but that is what your duties will be and the question is, I understand how difficult it is emotionally for you. I understand, as any man who has five daughters understands, so don't let that be the guiding light in this thing. The thing is whether or not you can be fair and impartial in dealing with these issues and not let what may be, as has been 9 suggested, pure visceral reaction prevent you from doing your duty as a juror. Mr. Greer you may continue. MR. GREER: Q And I hope that helps clear the air somewhat. Those I 14 have not talked to with the exception of Mr. Hoyle. I'll 15 get to you, sir. 16 MR. GREER: 17 Q Is it fair for me to conclude at this point that those 18 of you that I have not had a dialogue with on this subject, 19 that all can do the job and accord the Defendant the 20 presumtion of innocence of the crimes he's been charged with 21 and hold the burden of beyond a reasonable doubt on the prosecutor with respect to those crimes? In short, to convict the man of whatever he has done but not whatever he has not done in the eyes of the law? A The silence is beautiful. Thank you. 2202 VOIRE DIRE EXAMINATION OF DONALD G. HOYLE, JR. BY MR. GREER: Q Mr. Hoyle, is that something you can do all right? MR. HOYLE: A I don't know. That's why I raised my hand. I don't know if I could do it, you know and be fair. That's all. Q Well it's kind of like a lot of jobs in life, relatively easy to describe, but that doesn't mean it's relatively easy to do and the question as the Court has indicated, is simply, 10 it's a job. You got to put aside that emotional impact that 11 you know you're going to get. You have got to make sure.that 12 a man in our society who commits a crime gets convicted for /'• 13 the crime he did rather than for some other crime, fair 14 enough? 15 A Yes. 16 Q Think you can do that? 17 A I just don't know if I could do it and be fair, you know. 18 Q That brings us then to the next question. I know you 19 want to be fair, you want to do the right thing, and you 20 understand perfectly what the job is at this point, I gather. 21 Can you commit to the prosecutor, to Mr. Gapen and to the 22 Court that you can set aside emotional impact and try this 23 case in accordance with the law without being substantially 24 impaired in your ability to do so by the nature of the case ^., 2 5 or the nature of the evidence? 2203 A That's what I'm saying. I don't know that I can be fair, fair in that. Q Is your answer then that you can't make that commitment or that you can? A I can't make that commitment. Q All right. MR. GREER: Q On-the question of presumption of innocence and burden of proof, obviously in this case, you're going to hear all sorts of evidence and, as you know, there are ranges from possibilities to probabilities to beyond a reasonable doubt. 12 Can you resolve possibilities or things that are equally 13 consistent with innocence or guilt in accordance with the 14 presumption of innocence or burden of proof in doing your job 15 as jurors? Think all of you can do that? 16 q7iJRY: ( No response.) 17 Q You're going to hear through the course of the trial 18 objections to certain questions or to certain evidence that 19 is offered from the State. You're going to hear objections 20 to questions of certain evidence offered from the Defendants. 21 I trust you recognize that that's our job in the Courtroom. 22 Will anybody hold it against Mr. Gapen if his attorney 23 objects to questions or objects to the offer bf certain evidence in this case? JURY: (No response.) 2204 MR. GREER: I think the answer is no. if somebody feels otherwise. I read your questionaires, hey, you're human. We're the last person in the world to say anything. It's safer to make jokes in polite company about it so that's all right. But this is different. This isn't TV and this isn't a stand-up comedy act or anything like this. This is real life. Our job in real life as lawyers is to make sure things are done in accordance with the law. 9 That means we have to object. Judge Petzold makes the 10 calls. That's why he is here and nobody has any problem with 11 that and none of you will hold it against Mr. Gapen that 12 he's got a defense lawyer to defend him or that the lawyer 13 may make some objections, fair enough? 14 JURY: (No response.) 15 Q Can each you suspend your judgment in this case-- this is 16 a hard question, too--until you have heard all of the 17 evidence. I think it wouldn't be too fair to decide this 18 case last week or this morning. I think some of you have a 19 hard time doing that but simply suspend your judgment and be 20 like a sponge when you're trying this case, don't squeeze it 21 until you get in the jury room before you make any final 22 judgments in this case? 23 JURY: (No response.) 24 Q From your silence I'm trusting each of you can do that. 14,,.• 25 MR. GREER: Your Honor, that completes this 2205 part of my voir dire. If you'd like me to continue, I'll be happy to. Do you want to take the afternoon break? THE COURT: Let's do that at this time and do not discuss this matter, do not discuss this proceeding among yourselves or with any one else. You're under order from 6 the Court to refrain from any discussion about this case or it's proceeding until it is over. At this time we'll be excused and be back here at three o'clock. Court adjourned 9 untill three. (In the absence of jury panel: In dpen court 10 Defendant.) 11 (Whereupon, following a brief recess, the - 12 following proceedings are had outside of the presence of the 13 potential panel members; Defendant and all counsel present.) 14 IN OPEN COURT: 15 THE COURT: We're back on record without the 16 presence of the potential panel to deal with a variety of 17 issues relating to the first 55 on, I think, challenges for 18 cause. 19 MR. GREER: Your Honor, I haven't completed my 20 voir dire. 21 THE COURT: Okay. Then, basically, what we'll 22 be dealing with is jurors 1, 18, 19, 32, 33, 35, 46 and 54, 23 who at the portion of the voir dire of counsel for the 24 Defense have indicated they could not render a verdict or 25 some other fashion. And we'll deal with them probably in 2206 numerical order. We'll start at the top and go down. Brenda K. Martin. MR. DAIDONE: Your Honor, I thought the Court was going to do a further voir dire of,Brenda Martin and also Patricia Ward. 6 THE COURT: Well, with Brenda Martin, she now has put herself in a position where the other voir dire may 8 be somewhat unnecessary. MR. DAIDONE: The State would ask that she be 10 excused at this time. MR. GREER: In view of the record we have, I can't do anything but say that's the appropriate thing for the Court to do. THE COURT: Very well. Martin will be 15 excused. Juror number 18, Mr. William Capers. 16 MR. DAIDONE: State would ask that he be 17 excused, Your Honor. 18 MR. GREER: And again, I have no response, 19 other than to say that would be the correct thing for the 20 Court to do. 21 THE COURT: Mr. Capers will be excused. Number 19, Mr. Hoyle. MR. DAIDONE: State would ask that he be excused, Your Honor. MR. GREER: Again, I cannot object to that. 2207 THE COURT: Very well. Number 32, Mr. Garlitz. MR. DAIDONE: State would ask that he be excused at this time. 5 MR. GREER: There is no objection from the 6 Defendant. THE COURT: Number 33, Mr. Saylor. MR. DAIDONE: On Mr. Salyor, Your Honor, 9 Saylor, i'm sorry. I'm trying to remember exactly what he 10 said. I believe he said it would be difficult, it would be 11 hard to follow the law. I'm not sure if he.ever oommitted 12 that he would not be able to. I think he just said it would r1*1 13 be hard to follow the law. I'm not sure if he went that 14 extra step at this time to say he would not be able to. I 15 don't believe he did. 16 MR. GREER: My recollection is that he did 17 take that step and that he could not be a fair and impartial 18 juror and we would challenge for cause. 19 THE COURT: On two different occasions, he had 20 a real hard time to be fair, and he would likewise not be 21 swayed away from the Court's instructions. And I think 22 that's the thing that settles it for me. If he's not going 23 to pay attention to the Court's instructions in this case, 24 which is as in any case, the elements of the matters, he will ^ 25 be excused. 2208 1 Next would be 35, Mr. Scott Nolan, number 35. 2 MR. DAIDONE: Again, Your Honor, I'm not sure 3 if Mr. Nolan crossed the line or just indicated that he would 4 have a problem with it and it would be hard to do. 5 MR. GREER: My recollection is different. And 6 I think Mr. Nolan should be a permitted to attend this real estate closing in view of his testimony on voir dire, and we would challenge him for cause. THE COURT: With respect to Mr. Nolan, the Court circled this. When he said, I can't do this, it sounds 11 like a substantial impairment to me. Accordingly, he will be 12 excused. ^ Number 46, Miss Pickle. MR. DAIDONE: Miss Pickle, no objection to her being excused, Your Honor. MR. GREER: We would agree. THE COURT: Very well. Miss Pickle will be excused. And then last, number 54, Ms. Talmadge. Mary Talmadge, number 54. MR. DAIDONE: I believe the word she used was because of her work with children, doesn't think she can be fair. I'm not sure if she went so far as to commit that she would not be able to be impartial. MR. GREER: If that's a challenge for cause, 2209 we would have no objection to her excuse. 2 MR. DAIDONE: It's not a challenge for cause. THE COURT: Okay. MR. GREER: I think she made it clear that she could not. THE COURT: Those are the words that I have. Cou ld not. MR. COX: That's what I had in quotes. 9 THE COURT: She will be excused. 10 MR. DAIDONE: The only other matter we'd ask 11 upon, Your Honor, would be to do that voir dire of Patricia 12 Ward, number 3. 13 THE COURT: That would be done after, I think, 14 after we complete the entire voir dire. We'll just keep her 15 before we get into the actual completing of other challenges. 16 Okay? 17 MR. GREER: Okay. 18 THE BAILIFF: Do you wish to have these taken 19 out be fore we come bac k . 20 THE COURT: Might as well. 21 THE BAILIFF: Thank you. 22 MR. GREER: Have them answer other questions. 23 (Whereupon, the followin proceedings are had 24 on June 4, 2001, at 3:00 p.m., in the presence and hearing of 25 the jury panel; Defendant and all counsel present.) 2210 IN OPEN COURT: THE COURT: Continuing, Mr. Greer? 3 MR. GREER: Thank you, Your Honor. VOIR DIRE EXAMINATION BY MR. GREER: Q I'm going to bet that when you all filled out those jury questionnaires, you didn't think all the little personal things you told us about were going to be the subject of a grand inquiry here. Let me set your mind at ease. I'm not 10 going to ask you at any great detail about those personal 11 comments. You have all already given those and I respect 12 that. I am going to tell you about some of the topics that 13 are going to come up in this trial because they're topics 14 that are neutral to a lot of people and topics that are hot 15 buttons to other people. So, in this part of the questions 16 I'm going to ask you, it's going to be more important, the 17 questions that you ask to yourselves. 18 We've beaten you over the head with what your task is 19 supposed to be here and what I want to do is walk by you some 20 of the issues that are going to be involved in this case and 21 ask you to just ask yourselves if there's anything in your 22 own personal experience that touches a hot button or that you 23 can't set aside or that is going to give you a problem to you 24 as a juror. I think you understand what this exercise is at 25 this point. 2211 r 11 This is one that anybody wants to answer out loud. Anybody have any domestic problems or know friends that have had serious domestic problems. Don't bother to even raise your hand unless it's something that you feel would disqualify you as a juror in this case. There is going to be plenty of testimony on that kind of subject. Any of you been through divorces? Any of you ever been through -- and, again, I don't need 9 a show. If it's going to be a problem I'll ask you some 10 questions but I don't really care. And -- 11 A I just raised my hand. I don't know why. 12 Q I told you to be honest, didn't I. All right. Fair 13 enough. This is true of all of you. Just kind of think 14 about these in your own mind. I'm truly not here to try to 15 embarrass you. 16 Any of you ever been involved in disputes about domestic 17 violence? Either men hitting women, or women hitting men or 18 children hitting men or any things where the domestic 19 tranquility has become that intranquil? Problems with 20 'teenage kids? Okay. Nobody raised their hand, okay. Fair enough. Anybody ever been in a situation where you bring two sets of young children together in a subsequent marriage and then find that that leads to problems? And, again, these things happen in everybody's life or 2212 you know people that have these things happen to them and the question is not whether this is something you have encountered in your own life or the life of your friends, but if it's something that hits so close to home that if testimony comes up about this subject, it would be tough to be a juror this case? Anybody have problems with alcohol? Anybody have problems of a spouse that had you living 9 way beyond your means? 10 Anybody have problems of not being able to let go of a 11 broken personal relationship? 12 Anybody have problems in your own life or lives of 13 people that you know of developing a strong emotional bond 14 with little stepchildren that aren't your own, and then go 15 through a domestic problem where the risk is you that won't 16 ever see them again? Anybody ever encountered that kind of a 17 problem? 18 That's some of what this case is about. I did note from 19 some of your questionnaires that some of you have been 20 involved in coaching and in running programs for young 21 people. And there's going to be testimony about that in this 22 case as well. Mr. Maguire, I think, was one who has been in 23 that kind of situation. Are there any others of you who have 24 been involved as a coach for kids and done that sort of 25 thing? 2213 This time I will raise hands because nobody is ever 2 embarrassed about that. All right. Mrs. Gunnoe. Mr. Gooden. VOIR DIRE EXAMINATION OF DANIEL GOODEN BY MR. GREER: Q Mr. Gooden, what's been your experience in that world? A Coached football. Q What age kids? A Junior high. Q How long were you a junior high football coach? A About five years. Q How long ago was it? You're a young guy. It probably wasn't that long ago. 14 A Early 80s. 15 MR. GREER: The 80s. Okay. 16 VOIR DIRE EXAMINATION OF JUDITH I. GUNNOE 17 BY MR. GREER: 18 Q Mrs. Gunnoe, you have been involved in kid's sports. You 19 have a fair number of your own. 20 A I was a cheer leading coach at West Carrollton High 21 School. 22 Q How long were you cheer leading coach at West Carrollton? 23 A About four years. 24 VOIR DzRE EXAMINATION 25 11 BY MR. GREER: 2214 Q Mr. Senter, did I see your hand up? A No. Q I'm sorry. Who else was -- Here we are. Give us your name and your number, just like the Army. We'll take ladies first. 6 VOIR DIRE EXAMINATION OF VICKIE L. THOMPSON BY MR. GREER: 8 A I'm juror number 36, and my name is Vickie L. Thompson. I was a Girl Scout leader for sixteen years. And also teach 10 kindergarten. 11 Q What age Girl Scouts did you deal with? 12 A From -- Well, from Daisy to Seniors. I had them every f_. 13 year, from ages five on up to when they were in high school. 14 Q I'm glad you defined Daisy and Seniors becuase at my age 15 of 64, man, you don't know the Daisy from the Senior. 16 VOIR DIRE EXAMINATION OF JON PARIN 17 BY MR. GREER: 18 Q You, sir, had your hand up? 19 A I'm Jon Parin, juror number 29. I've been involved in 20 coaching girl's basketball and soft ball for the last ten, 21 twelve years. And youth leagues in the summer. I helped the 22 high school team. So that encompasses, right now girl's 23 probably ages 14 to 18, previously. My daughter is all grown 24 up. Ages all up to 20. ^3 25 Q How long have you been doing it? 2215 A About 12, 15 years. L VOIR DIRE EXAMINATION OF JAMES M. JEWETT BY MR. GREER: Q Who else has been involved -- Mr. Jewett, this time I'll recognize you when you raise your hand. A All right. I was the Assistant Scout Master of Troop 55 in Englewood for a couple of years. And then I also did a little coaching for NABL. I had the 12 and 13ryear-old boys 9 in baseball. 10 Q How long were you involved in that? 11 A That was one year. I had more trouble out of the 12 parents than I did the kids so I decided until the parents 13 grew up a little bit, I'd just kind of leave that alone. But 14 I still stayed active with the Scouts until my boys got out 15 of it. But one year was enough for NABL. 16 Q The parents can get a little heavy when you're in that 17' business? 18 A Yeah. 19 VOIR DIRE EXAMINATION OF BRADLEY A. IVEY 20 BY MR. GREER: 21 Q Anybody else been.involved in coaching kids? 22 A Mr. Ivey, you have? 23 A You mentioned a criminal case? 24 THE COURT REPORTER: I'm sorry. Speak louder. 25 A My mother killed my father. I think that should be 2216 brought out. LW Q All right. That's an unhappy experience. That's Mr. Ivey, juror number 25. The question, obviously, is the same question that we keep sounding like a broken record in asking. We have all had awful experiences in our'individual lives and if we took the time to tell them all to each other, we'd be here for another three weeks. But that's an 8 experience. Is that going to affect your ability to serve as 9 a juror in this case? That's the bottom line question every 10 time. 11 A I don't think so but it has bothered me a lot though. 12 Q How old are you when it happened? 13 A Nine or ten. 14 Q Well, you know, it's the question that only you can 15 answer. You know what the issue is here. It isn't who done 16 it. It's what crime was committed, whether it was murder or 17 whether it was aggravated murder. And you will hear the 18 Court's instructions, and the State has to prove their case 19 beyond a reasonable doubt. That's the juror's job. And can 20 you do that job? 21 A I don't think it would bother me too much. 22 Q All right. And you can be fair to the Defendant in this 23 case just as you can with the State? 24 A I can. Yes. 25 VOIR DIRE EXAMINATION 2217 BY MR. GREER: Q Anybody else? Let's get on the happier subject of coaching kids sports. Anybody else been involved in that? VOIR DIRE EXAMINATION OF RICHARD WELLS BY MR. GREER: Q You, sir, give us your name and number. A Juror number 47, Richard Wells. Youth baseball, about 10 to 16, for about five years. 9 Q When did you get out of coacihing the kids in baseball? 10 A Probably roughly about ten years ago now, or maybe not 11 that many. Maybe about seven years ago. I'm sorry. 12 VOIR DIRE EXAM.INATION OF ROGER BLAKE 13 BY MR. GREER: 14 Q Mr. Blake, it looks like you have had a little of that 15 experience as well. 16 A Yes, sir. 17 Q Finally found somebody who works in a legal office that 18 doesn't have to work 24 hours a day. What's been your 19 coaching experience? 20 A I coached little guys, young men between the ages of 10 21 to 14 years old in basketball. 22 Q How long were you involved in coaching the kids in 23 baseball? 24 A Just about a year or two. In school and in bible camps. ^ 25 THE COURT REPORTER: I'm sorry, sir. I can't 2218 hear. A I'm sorry. Currently teaching in bible camps and teaching one year in school as well, the same thing. VOIR DIRE EXAMINATION OF MICHAEL A. McCRAY BY MR. GREER: Q And finally, Mr. McCray. We`1l get your name right this 7 time. A Okay. 9 Q Fair enough? 10 A Yes. 11 Q You have done a little coaching? 12 A Just a little bit. I coached a soccer team about five 13 years ago and helped out with baseball with that. And I was 14 on the pee wee football circuit in Vandalia. 15 Q When were you on the Vandalia pee wee football? 16 A Last year. I had the same problem as Mr. Jewett had back there. Q Parents are tough. I have a stepson who was a football coach too and he found out the way you.take care of it is just tell them, when they want to know how they can help, just tell them to stay way back there. 22 A I don't mind watching kids but I don't like watching 23 adults. 24 Q Adults are usually mcre trouble than kids. VOIR DIRE EXAMINATION OF ROGER BLAKE 2219 BY MR. GREER: Q Mr. Blake, do you get along with the parents as well as the kids? A I'll get along with anybody. Q That's good. The pee wee,football in Vandalia, do they 6 play against the pee wee football team from Huber Heights? A Yes. Q There's going to be evidence in this case that Larry 9 coached the kids in the Huber Heights youth football for some 10 ten years, about the 6th grade level kids. 11 A Hmmm. 12 Q Does that ring any bell with you or did you ever -- A I'll just say it does. I remember that we were at a 14 board meeting and one of the refs said something about a 15 coach at Huber was arrested or something. I didn't hear all 16 the details. 17 Q But you'd not encountered Larry back when you were 18 coaching the kids, that sort of thing? 19 A No. 20 VOIR DIRE EXFIMINATION 21 BY MR. GREER: 22 Q Anybody else that we have talked to that's been in the 23 coaching end of the world with little kids ever encountered 24 Larry, who was a coach over in Huber Heights for about ten 25 years with little football players? 2220 A (No response.) MR. GREER: I take it the answer is no. VOIR DIRE EXAMINATION OF MICHAEL A. McCRAY BY MR. GREER: Q And what you heard Mr. McCray, isn't going to affect your judgment one way or the other in this case, I take it, at this point, is it? A No. VOIR DIRE EXAMINATION 10 BY MR. GREER: 11 Q Let me ask a few other individual questions of those of 12 you who had some problems because one thing that you have 13 probably already discovered after I got done telling you that 14 there are going to be some rather emotional moments in this 15 trial, there's a lot of boredom that goes into these things, 16 too. You have already had to suffer through some of that. 17 VOIR DIRE EXAMINATION OF MARY LOU ANDERSON 18 BY MR. GREER: Q Mrs. An.derson, I notice that you have been trying to get a little work done during voir dire. A Yes, I've done that. Q I've done that and I can't blame you. I understand that you have got a work problem that is the fruition of four years labor, and that you have got a,special problem with that. Exhibit 5 Voir Dire (Transcript pages 2246-2256) 2246 MR. DAIDONE: Your Honor, I reluctantly would have to agree. THE COURT: Thank you. She will be excused. Any other challenges for cause? MR. GREER: No, Your Honor. 6 THE COURT: The Court is going to reverse itself on Mrs. Ward. I was just reviewing my notes here and reviewing the notes from last week. It's a toss up, as to 9 whether she is or not, but she's been pre-qualified and I 10 think that pre-qualification means something. And also that 11 rethinking what Defense counsel has reiterated as the 12 potential for, so I'm leaving Mrs. Ward on. 13 THE COURT: Any other issues, challenges for 14 cause? 15 MR. GREER: None, Your Honor. 16 MR. DAIDONE: None, Your Honor. 17 THE COURT: Now I guess we can fill seats. 18 THE BAILIFF: Chair number 1 would be James 19 Jewett. 20 THE COURT: Okay. 21 THE BAILIFF: Chair number 2 would be Mark 22 Maguire. 23 THE COURT REPORTER: Do you have a number? 24 THE COURT: Number 14? THE BAILIFF: Yes, sir. 2247 THE COURT: Jewett is 13? THE BAILIFF: Yes, sir. MR. COX: Jewett would be number 1? THE COURT: Jewett would be number 1. 5 THE BAILIFF: Yes, one. 6 MR. COX: Mark Maguire would be number 2? THE COURT: Yes. THE BAILIFF: Chair number 7 becomes number 15 9 which is Julie Griffie. 10 THE COURT: Okay. 11 THE BAILIFF: Chair number 9 becomes number 20 12 Raymond Senter. 13 THE COURT: All right. As you all understand, 14 each side has six peremptory challenges and we'11 deal with 15 the alternates separately as to the number of peremptories. 16 When both sides pass, that will conclude the peremptories. For the State. MR. DAIDONE: May we have a moment, Your Honor? Your Honor, the State would ask that juror number 3, Patricia Ward be excused. THE BAILIFF: That would be juror number 24, Mattie Flournoy. THE COURT: It wouldn't be number 23? THE BAILIFF: I'm sorry. Judith Gunnoe. I'm sorry. I went one too far. 2248 THE COURT: Defense? MR. GREER: And we'll excuse Mr. Jewitt, who 3 is now juror number 1. He's number 13 on the list. THE COURT: Very well. THE BAILIFF: That would then become number 24, Mattie Flournoy. THE COURT: For the State? B MR. DAIDONE: One moment, Your Honor. Your 9 Honor, the State would ask that juror number 4, Daniel Gooden 10 be excused. THE COURT: Next? THE COURT: For the Defense? MR. GREER: Could we ask the Prosecutor to state the reason for excusing Mr. Gooden in view of his race? 15 THE COURT: Very well. There's been a Batson 16 objection lodged. 17 THE COURT: Mrs. Kelley, if you could have 18 Mrs. Hardy perhaps give the jurors a break because it may 19 take a little longer? 20 MR. DAIDONE: Your Honor, under Batson before 21 the State would have to make a race neutral explanation, a 22 prima facie showing has to be made that a peremptory 23 challenge had been used for racial discrimination purposes. 24 And I believe that the Defense has not shown a prima facie 25 showing. 2249 THE COURT: Defendant's argument. MR. GREER: Our argument, Your Honor, is that 3 as is probably well known to everybody in this room, black jurors tend to be favorable to Defendants whether those 5 Defendants are white or black. They relate to people who they regard as being an oppressed member of society. And I think that Batson objection is as appropriate in a case of 8 this nature as it is if Mr. Gapen was black as well as a 9 Defendant in a serious criminal case. 10 THE COURT: Okay, Mr. Daidone, the ball is in 11 your Court. • 12 MR. DAIDONE: Your Honor, the reasons are 13 absolutely not based on race. They're based on Mr. Gooden's 14 comments and testimony that he made during the first voir 15 dire. He had some -- The State feels from watching him 16 during the £irst voir dire, he had some problems with the 17 death penalty. The burden had to be beyond all doubt. I 18 believe his son was convicted and I believe that he might 19 have had some negative reaction to the Dayton Police 20 Department. But most importantly, the record should state 21 that as a prosecutor during a peremptory challenges, I have 22 tried cases for almost 20 years, I have watched him, watched 23 his body language. I watched him answer the questions 24 involving the death penalty and it's my feelings that my Vw„J 25 decision is based upon those factors, and have absolutely 2250 nothing to do with the race of this individual. THE COURT: It doesn't say that it has .to be an absolute reason that makes sense. It has to make sense to the person who gives it. And accordingly the challenge is overruled. THE COURT: For the Defense? MR. GREER: For the Defense, we'll excuse 8 juror number 5, Sean Albaugh. 9 THE BAILIFF: That becomes 26, Dave Paul 10 Nedostrup. THE COURT: For the State? MR. DAIDONE: One moment, Your Honor. Your Honor, the State would ask as she is sitting now, I don't remember her number, she is now sitting in juror number 3 15 spot, Judith Gunnoe. 16 THE BAII,IFF: That then becomes number 28, 17 Ramona Vosler. 18 MR. GREER: We can only excuse jurors, as I 19 understand it, if they're in the first 12. 20 THE COURT: That's correct. 21 MR. GREER: As I understand it, if we have 22 passed we have used one of our peremptories. 23 THE COURT: That is correct. 24 MR. GREER: We'll excuse juror number 8, Kathy 25 Odonnell. 2251 THE BAILIFF: That then becomes number 29, Jon Parin. MR. DAIDONE: One moment, Your Honor. THE COURT: Very well. 5 MR. DAIDONE: State would ask that juror 6 number 12, John Korbel be excused. THE BAILIFF: That then becomes number 30, Raymond Schirmer. 9 MR. GREER: We would excuse juror, who is now 10 number 8, he's number 29 on the list, Jon Parin. 11 THE BAILIFF: That then becomes Robert Myers, 12 31. MR. DAIDONE: I'm sorry. Who is taking Mr. Parin's spot? THE BAILIFF: Robery Myers, number 31. 16 MR. DAIDONE: One moment, Your Honor. 17 THE COURT: All right. 18 MR. DAIDONE: Your Honor, State would ask that 19 juror number 10, Connie Wehrly be excused. 20 THE BAILIFF: That then becomes number 36, 21 Vickie Thompson. 22 MR. GREER: Defense would then challenge juror 23 number 12, number 30 the list, Mr. Schirmer. 24 THE BAILIFF: That would then become number ^ 25 37, Robert Blasingame. 2252 MR. DAIDONE: One moment, Your Honor. 2 MR. COX: Make sure I have the count right. 3 Each side has -- ? 4 THE COURT: Six. 5 MR. COX: We have selected five so far, Your 6 Honor. 7 THE COURT: Five so far. Five complete. 8 We're on the 6th and final round. I was getting ready to 9 announce that just before you asked the question to make sure 10 everybody knew and nobody was miscounting. 11 MR. DAIDONE: One second, Your Honor. 12 THE COURT: Very well, sir. 13 MR. DAIDONE: Your Honor, State would ask that 14 juror number 11, Linda Burdette be excused. 15 THE BAILIFF: That's replaced by number 38, 16 Donald Hoyle. 17 MR. GREER: How about thirty -- 18 THE COURT: 37 has been placed. 19 THE BAILIFF: 37 and -- 20 THE COURT: 36 and 37 have been placed. 21 Everybody else has been excused up to that point. 22 MR. GREER: All right. The Defendant then 23 would challenge juror number 11, formerly number 38 on the 24 list, Donald G. Hoyle, Jr. THE BAILIFF: That then becomes number 39, 2253 ' l l David Ballman. 2 THE COURT: Would the Bailiff please read the names into the record? THE BAILIFF: Number one chair, Mattie Flournoy. Number 2 chair, Mark Maguire. Number 3 chair, Ramona Vosler. Number 4 chair, Bradley Ivey. Number 5 chair, David Nedostup. Number 6 chair, Janice List. Number 7 chair, Julie Griffie. Number 8 chair, Robert Myers. Number 9, Ray Senter. Number 10, Vickie Thompson. Number 10 11, David Bauman. 11 Number 12, Robert Blasingame. 12 THE COURT: Very well. That completes the 13 panel. The Court in its wisdom is pursuing the number of 6 14 alternates for this portion of the trial as long as we can 15 legally have alternates. Each side is given three challenges 16 to the alternates. We'll be commencing with our first first 17 eligible number, that would be number 40. Roger Benner. 18 MR. COX: So each side will get three, Your 19 Honor? 20 THE COURT: Each side will get three. 21 MR. COX: For clarification, you say that 22 we're going to look at the next six names? 23 THE COURT: Yes, the next six names. 24 THE BAILIFF: Rober Benner, number 40. Number 25 41 is Tammy Baker. Number 42 is Virginia Logan McClendon. 2254 Number 43 is Heidi Reynolds. Number 44 is Linda Fi1o. And then we jump over to 47, Richard Wel1s. THE COURT: State begins first. MR. DAIDOME: One moment, Your Honor. Your Honor, State would ask that juror 42, Virginia McCZendon, be excused. THE BAILIFF: How do you wish to -- a THE COURT: Just take the next name in order. 9 Mr. Robyn Howard? 10 THE BAILIFF: Yes. Robyn Howard then replaces-- THE COURT: For the Defense. MR. GREER: For the Defense we would excuse juror number 40, who is the first alternate, Robert Benner. 15 THE COURT: All right. That would become Dan 16 Wyckoff. And for the State? 17 MR. DAIDONE: State would pass, Your Honor. 18 THE COURT: For the Defense? 19 MR. GREER: We'll excuse Mr. Wyckoff, juror 49 20 who is in the first alternate's chair. 21 THE COURT: Very wel].. 22 THE BAILIFF: That will be 50, Kimberly 23 Alspaugh. 24 MR. DAIDONE: One moment, Your Honor. State ^;,y^ 25 11 would pass, Your Honor. 2255 THE COURT: State passes. Final. MR. GREER: For clarification, is Alspaugh in the first chair now? THE COURT: She is in chair one? THE BAILIFF: She is in one. MR. GREER: Give me a moment, Your Honor. THE COURT: Very well, sir. MR. COX: Who would be the next up? 9 THE BAILIFF: The next up would then be Rhonda 10 Lenox. 11 MR. GREER: So then we wo'uld challenge 12 Kimberly Alspaugh, juror number 50, the first alternate. 13 THE BAILIFF: And put in Rhonda -- ? 14 MR. GREER: Lenox. 15 THE COURT: Would you read those into the 16 record, please, Madam Bailiff? 17 THE BAILIFF: The first alternate is Rhonda 18 Lenox. The Second alternate is Tammy Baker. The third 19 alternate is Robyn Howard. The fourth is Heidi Reynolds. 20 The fifth is Linda Filo. Number 6 is Richard Wells. 21 THE COURT: Okay. That's it. 22 MR. GREER: That is it, Your Honor. Although 23 I think for the record we should put on for the Defendant, 24 his renewal of his objections to any of the jurors that 25 appear, either on the panel of 12 or on the 6 alternates, in 2256 accordance with the objections we have previously made to any of those jurors. THE COURT: Very well. Your objections are duly noted. MR. GREER: Thank you, Your Honor. THE COURT: And overruled. MR. COX: We understand. We need to protect B the record when we make those objections. We're not satisfied with the jury as the record goes. 10 THE COURT: Yes. I understand that, sir. I 11 did not expect you would be. 12 THE COURT: Trudi, off the record for a 13 second. 14 (Whereupon, a short discussion was had off the 15 record. The following proceedings are had on the record.) 16 {* - TRUDI - I CAN'T HEAR A CLICK OR.ANYTHING BEFORE HE 17 STARTS THIS NEXT PARAGRAPH. I THINK HE MEANT IT TO BE OFF 18 THE RECORD. SEE LAST SENTENCE OF NEXT PARAGRAPH.) 19 THE COURT: For the purposes of the record, I 20 have discussed with State's counsel and Defense counsel the 21 next order of business and that would be to swear the jury and alternates tonight and give them preliminary instructions so that they are bound by certain rules, even more complete than were given in the earlier set of instructions, or two sets of instructions that we have given them. Then we could Exhibit 6 Opening Statements -- Trial Phase (Transcript pages 2302-2341) 230 Opening Statement - State IN OPEN COURT: 2 THE COURT: Ladies and gentlemen of the 3 jury, at this time counsel for the parties will present 4 their opening statements. Opening statements are a concise orderly description of each side's evidence 6 that counsel expects to produce, and it is not evidence. Each side will address you once during the opening statements commencing with the State of Ohio, Ms. Ballard. MS. BALLARD: Thank you. sir. OPENING STATEMENT BY MS. BALLARD: Your Honor, Counsel, Detective Dunsky, Miss 14 Hobson, Mr. Daidone, ladies and gentlemen of the jury, 15 on September 18 of 2000, the Defendant snuck into a 16 home in the dead of the night, a home where a woman was 17 asleep with her companion, who was also her ex-husband, 18 a home where that woman's four children were asleep in 19 their beds. The Defendant snuck into that home armed 20 with a splitting maul, a tool similar to an axe to use 21 to cut wood. We will prove, ladies and gentlemen, that 22 on September 18 of 2000, the Defendant decided who 23 lived and who died. He very methodically went from 24 room to room deciding who he would attack with that maul and who he wouldn't. COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 2303 Opening Statement - State He crept downstairs to the basement first, and 2 he brutally ended the life of Martha Madewell and 3 Nathan Marshall as they slept on a couch. Then he proceeded to walk up, not one, but two flights of 5 stairs where he brutally chopped Martha's 13 year old 6 child, Jesica Young, as she slept in her bed. She died 7 two days later. 8 What you will hear is that the Defendant chose 9 not to kill Martha's two youngest children, 7 and 8 10 year old Billy and Brooke Madewell. Instead he placed them in the back of his rental car where they were found several hours later at the time of his arrest. When asked later by the police why he didn't kill Martha's 17 year old son, Daniel, who was sleep in the 15 next room to Jesica, you will hear that the Defendant 16 'said, "Daniel doesn't know how lucky he is." 17 We will prove, ladies and gentlemen, that the 18 Defendant not only brutally attacked Martha, but he 19 also had sex with her that night and that he took her 20 purse from the home. The purse was found on the front 21 seat of his rental car again several hours later at the 22 time of his arrest. 23 So what is the Defendant charged with? Why 24 are you here today? The Defendant is charged with 16 25 counts and multiple specifications that I will go into j COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 230 Opening Statement - State in a minute. Let's start from the top, count one, 2 escape from detention. In this case, it was part of 3 the electronic home detention program. You will hear 4 testimony, ladies and gentlemen, that Defendant was on 5 electronic home detention on September 18, 2000 and 6 that he was only allowed to leave the house to go to work, but we will prove that he left the house and did 8 not report to work. That is count one. 9 Count 2, aggravated burglary at 6255 Pheasant 10 Hill Road, Dayton, Ohio. You will hear testimony that 11 the Defendant did not live at that address, that he had 12 no key and no permission to be there and but went into 13 that home anyway that night. 14 Count 3, rape of Martha Madewell on the 15 evening in question. 16 .Count'4, the aggravated robbery concerning 17 Martha Madewell's purse that he took from the home. 18 Count 5, aggravated murder with prior 19 calculation and design concerning the death of Nathan 20 Marshall, and I'll explain what that is in a minute. 21 Counts 6, 7, and 8, aggravated murder based on 22 or during the commission of aggravated burglary, rape, 23 and aggravated robbery. 24 Now, counts 9"through 12 are the same counts 25 of aggravated murder, but they concern the death of COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO Opening Statement - State Martha Madewell. 2 And counts 13 through 16 are also the same 3 counts of aggravated murder, but they involve the death 4 of Jesica Young. Now, each and every one of those aggravated murders from counts 5 through 16, each of those 12 counts of aggravated murder, carry five specifications 8 to them. Five specifications that are called 9 aggravating circumstances specifications, also referred 10 to as death penalty specifications by the Court in some 11 of the instructions during jury selection. 12 What are they? Well again, I'll explain in ^./ 13 more detail but for now, you should know that the first 14 one is broken detention. That each and every 15 aggravated murder was committed while the Defendant was 16 under detention for having broken detention. 17 The second is that each aggravated murder was 18 the purposeful killing of two or more persons and the 19 third, fourth, and fifth specification to each and 20 every aggravated murder is that the Defendant was the 21 principle offender while in the commission of 22 aggravated burglary, rape, and aggravated robbery. 23 Now, that's an awful lot. 24 So what does that mean that the State must 25 prove beyond a reasonable doubt? What I'm going to COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 230 P. Opening Statement - State talk about now, ladies and gentlemen, are the elements of each and every one of those counts and 3 specifications. Starting with the first count, escape, 4 the State will prove that between the dates of 5 September 15 through the 18th of year 2009 in Montgomery County, Ohio, the Defendant knowing that he 7 was under detention for the charge of or being reckless 8 in that regard did purposely break or attempt to break 9 such detention or did purposely fail to return to detention following a temporary leave granted for a specific ptirpose or limited period, said detention being a result of a felony of the third degree. Again, ladies and gentlemen, you will hear testimony that the Defendant was on electronic home detention, sometimes referred to as houSe arrest, at the time of these crimes. You will hear that he was 17 not allowed to leave the house except to go to work. 18 We will prove that he did leave the house and that he 19 did not report to work and that is how we will prove 20 that he escaped from detention; more specifically, 21 electronic home detention. 22 Count two, aggravated burglary, again the 23 State will prove that on or about September 18, 2000, 24 in Montgomery County, Ohio, at this time at 6255 25 Pheasant Hill Road, that you saw earlier today, the COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 230 Opening Statement - State Defendant by force, stealth, or deception did trespass 2 in an occupied structure, that being a residence 3 located at 6255 Pheasant Hill Road when another person, 4 other than an accomplice of the offender was present 5 with purpose to commit in the structure any criminal 6 offense and did inflict or attempt or did threaten to 7 inflic t phys ical harm to anot her. 8 Now, unlike the first count, this count and 9 all the counts that follow are going to occur on or 10 about September 18 of 2000 at 6255 Pheasant Hill Road 11 in Dayton. The first count, the escape, is the only 12 count that occurred from the 15th to the 18th of 13 September, and that occurs at 132 Brusman Drive in 14 Vandalia, again the house that you saw earlier today, 15 the residence where the Defendant was living with his 16 daughter and his son. 6255 Pheasant Hill Road, 17 however, was the residence where Martha Madewell was 18 living with her four children. 19 We will prove the elements of stealth and 20 deception because the Defendant,.as you will hear, 21 snuck into that house in the dead of the night,when 22 every one else was asleep. You will hear evidence of 23 the element of trespass because the Defendant was not 24 living at the Pheasant Hill Road address with Martha at 25 any time, that he had no key, and he had no permission COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 230 8 Opening Statement - State r 1 to be there. And we will also prove that another 2 person was present, in fact, will prove-that four 3 children and two adults were present in that house when 4 he trespassed into it, and we will prove that he did it with a purpose to commit any criminal offense, among which aggravated murder and rape. And finally, we will prove that he did inflict'physical harm on another when he killed Martha and Nathan and so brutally attacked Jesica that she died two days later. Counts 3 and 4, rape and aggravated robbery, again having told you that the date is going to be September 18 of 2000 at the Pheasant Hill Road address, ^^. we will also prove that the Defendant did engage in sexual conduct with another, Martha Madewell, by 15 purposefully compelling her to submit by force or 16 threat of force. You will hear testimony that the 17 Defendant himself admitted he had sex with Martha that 18 evening, and physical evidence wi3.1 also prove that. 19 Concerning the aggravated robbery, the State 20 will prove that in attempting or committing a theft 21 offense or in fleeing immediately after the attempt or 22 offense, the Defendant did inflict or attempt to 23 inflict serious physical harm to another. 24 We will prove, ladies and gentlemen, that 25 Martha's purse was sitting on a coffee table of her COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 230 Opening Statement - State / living room on the first floor when she went to bed 2 that night and that purse was found after the murders 3 several hours later sitting on the front seat of the 4 Defendant's rental car. And we will prove that he did inflict serious 6 physical harm to another because again, he killed Martha and Nathan that evening and so brutally wounded a Jesica that she died two days later. 9 In counts 5, 9 and 13, 5, 9,and 13, the 10 Defendant is charged with aggravated murder with prior 11 calculation and design. The State will prove that on 12 or about September 18 of 2000 in Montgomery County, 13 Ohio, at the Pheasant Hill Road address the Defendant 14 did purposely and with prior calculation and design did 15 cause the death of another, Nathan Marshall, Martha 16 Madewell, and Jesica Young. We will prove, ladies and 17 gentlemen, that he killed those three individuals 18 purposely and with prior calculation and design because 19 you're going to hear proof and evidence and.the 20 Defendant's own admissions that he had been in that .21 house earlier that evening, that he had seen Martha and 22 Nathan lying on the couch together asleep, and he left 23 only to return several hours later with the maul and 24 the pair of gloves, that he parked his car in the back of the house, that he carefully removed his shoes once COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 2310 Opening Statement - State he walked into that home, and.that he had a change of 2 clothes in his car. We will prove that he did all of 3 those things prior to the time that he killed those 4 three individuals. We will prove that all of those 5 facts will constitute purpose and prior calculation and design. 7 The Defendant is also charged with aggravated 8 murder based upon certain underlying felonies, and you 9 will find these in Counts 6, 7, and 8 concerning Nathan 10 Marshall, 10, 11, and 12 concerning Martha Madewell, and 14,15, and 16 concerning Jesica Young. What does the State have to prove this time? Well, again that the offense occurred on or about September 18 of 2000 in Montgomery County, Ohio, and at that Pheasant Hill 15 Road address the Defendant did purposely and while 16 committing or attempting to commit or while fleeing 17 immediately after committing or attempting to commit 18 the offenses of aggravated burglary, rape, and 19 aggravated robbery, the Defendant did cause the death 20 of Nathan Marshall, Martha Madewell and Jesica Young. 21 Now, you have already heard what I have told 22 you the State will prove and what the elements are of those underlying felonies, aggravated burglary, rape and aggravated robbery, and that same proof will apply here. But what we will also prove is that the COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 231 Opening Statement - State i Defendant committed all of those felonies while or in 2 the same course of conduct as the killings. Even 3 though Martha Madewell was the only one sexually 4 assaulted that evening, we will prove that the Defendant is charged in this case with aggravated 6 murder of Nathan and Jesica based upon the rape of Martha because again the rape of Martha occurred in the 8 same course of conduct as the killings of Nathan and 9 Jesica... 10 And, finally, ladies and gentlemen, as I said 11 earlier, each and every one of those aggravated murders 12 from Count five to Count 16 carries five specifications 13 with it, five aggravating circumstances specifications. 14 And I know it's a little bit hard for these 15 specifications so let's go over them. The first 16 specification that I told you about is broken 17 detention, and what the State must prove is that the 18 Defendant committed each aggravated murder while he was 19 under detention or while he was at large after having 20 broken detention, and again we will prove that the 21 Defendant was on electronic home detention on September 22 18 of 2000 for an offense that occurred months before 23 this one and that he did break that detention when he 24 left his home, he did not report to work, and he was 25 only supposed to leave his home to go to work. c COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 2312 Opening Statement - State The second specifications, that the aggravated 2 murders were the purposeful killings of two or more 3 people, the State must prove that the aggravated murder 4 was part of a course of conduct involving a purposeful 5 killing of or attempt to kill two or more persons by 6 the Defendant, and, ladies and gentlemen, you're going to hear there were more than two people; there were 8 three, two adults and a child. 9 And the third, fourth and fifth specifications 10 concerning those underlying felonies, the State must 11 prove that the Defendant was the principie offender in 12 each aggravated murder and that each aggravated murder 13 was committed while the Defendant was committing, 14 attempting to commit, or fleeing immediately after 15 committing or attempting to commit aggravated burglary, 16 rape, and aggravated robbery. Again, you have already 17 heard the elements of the aggravated burglary, the rape 18 and the aggravated robbery, and, again, the same proof 19 will apply here, but what we will also prove is that 20 the Defendant was not only the principle offender, he 21 was the only offender; that he had.no accomplices that 22 evening, that he acted alone. 23 We will prove each and every one of those 24 counts and specifications beyond a reasonable doubt, 25 each and every single one of them. We will prove each COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 231 Opening Statement - State 1 and every single element of each and every single count 2 and specification beyond a reasonable doubt. So you're 3 probably asking yourselves, what happened? 4 Well, to understand what happened, you need to 5 know who we're talking about. You have heard some of 6 the names, seen them on the questionnaires, so let's 7 talk about them. I 8 Martha Madewell: One of the victims in this 9 case, was a 38 year old woman, school bus driver and a 10 mother of four children. Daniel, 17 at the time, her 11 oldest. One of the other victims, Jesica, was a 13 12 year old child, and her two youngest, Billy and Brooke 13 Madewell, who were 7 and 8 respectively. Martha had 14 been married to the Defendant. They had been married. 15 for three and a half years, but their marriage was 16 officially over by the filing of a dissolution just 17 four days before these crimes, and they had been 18 separated for months before that. 19 Now, you may be hearing about some of the 20 Defendant's children that he also had from previous 21 marriages, but they had no children in common. He had 22 an older daughter, Charity Gapen, who was 21, and Jimmy 23 Gapen, who was 17 at the time. 24 And, again, there was yet a third victim, Nathan Marshall, who was a 40 year old man who had COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 2314 Opening Statement - State previously been married.to Martha Madewell years 2 before. They had divorced but recently reconciled at 3 the time that all of this occurred. 4 At the time that Martha was married to the 5 Defendant, they lived at 6529 Deer Bluff Drive in Huber 6 Heights, one of the same places that you saw earlier 7 today, and they lived there with their children, but at 8 one point both of the Defendant's children moved out, and they began to have-- Larry and Martha began to 10 have marital problems so the Defendant moved out, and 11 he moved into 132 Brusman Drive in Vandalia, Ohio, with 12 his daughter and his son, again Brusman Drive that you 13 saw earlier today. Martha stayed at the Deer Bluff 14 Drive residence with her four children. 15 Now, in early July of 2000, the Defendant was 16 indicted for abduction in an offense involving Martha 17 as the victim. A few days later he was placed on 18 electronic home detention. That is a program that is 19 run by the Pre-Trial Services Department of these 20 courts, Montgomery County Courts. What that meant is 21 that he wore a band with a box around his ankle that 22 monitored when he went in and out of his home. In 23 other words, when he was in 132 Brusman and when he had 24 left 132 Brusman, and you will hear the testimony of 25 employees with both Pre-Trial Services and also a COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 231ffi Opening Statement - State company in Indiana that monitors the signals from those boxes as to the exact times the Defendant was in and 3 out of range. Now, less than two weeks later, Defendant was 5 granted work release. What that meant was that he could leave the houses but only to go to work, only to 7 go to work. And, again, he was monitored with the same 8 department and the same company in Indiana. And you 9 will hear testimony, ladies and gentlemen, that the 10 Defendant was violating the terms of his work release by leaving the house and not reporting to work, and you will hear that that's exactly what he did on the weekend in question. Now you'll hear that the Defendant was a truck 15 driver with Federal Express Ground, and he'd called 16 Pre-Trial Services Department the Friday before the 17 murders and told them that his week end schedule was 18 going to change. Normally he worked a shift that went 19 from Monday to Friday eleven p.m. to six a.m., and he 20 would drive to and from Columbus and to and from 21 Louisville, Kentucky, and what you will learn is that 22 he had other drivers doing his routes on certain nights 23 so that he could attend football games, football 24 practices, and dinner with his family and friends. 25 Ypu will hear, ladies and gentlemen, that COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 2316 Opening Statement - State around the same time in late July of 2000, Martha had 2 moved out of the Deer Bluff residence. She had moved 3 her and her four kids to a house, condominium, at 6255 4 Pheasant Hill Road. The Defendant was never living 5 with her, and they remained separated throughout that 6 summer. In fact, on September 14 of that same year their marriage was over officially. The decree of 8 dissolution was filed. and they were no longer married. That same day the Defendant rented a car, a Ford Taurus, that he rented for the weekend and the following day, on Friday, September 15 of 2000, the Defendant made that call to Pre-Trial Services and left a message as to his changed schedule, that he'd be working earlier routes on Friday evening, Saturday during the day, Saturday evening, and you will hear from his boss and some other individuals that the Defendant in fact never reported to work but that other drivers drove his routes that weekend, and you will 19 hear what he did'that weekend. 20 In fact, you will hear that he attended a 21 football game in Huber Heights that Friday and coached 22 little League football that next morning? Saturday, the 23 16th. Then Saturday evening he went out with the 24 mother of one of his Little League players. They went to dinner at Applebys in Huber Heights with her and her COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 231 Opening Statement - State children. She's going to tell you that afterward they 2 went back to the Deer Bluff residence, they got the 3 Defendants Corvette, and they took a ride to 4 Springfield, and then they stopped off in New Carlisle 5 and played some pool on their way home. 6 You're going to hear that the Defendant 7 appeared to have a nice time that evening. And the 8 following day, you're going to hear that the Defendant on that Sunday evening, just four and a half hours before the killings, enjoyed a nice dinner with his son and his son's girl friend, Kacee Miller, at the Cold Beer and Cheeseburgers in Huber Heights. 13 Meanwhile back at 6255 Pheasant Hill Road, 14 Martha had gone away for the weekend with Nathan 15 Marshall, and her four children had spent the weekend 16 away, either with relatives or with friends, but all of 17 them started to come home that Sunday evening,.Sunday, 18 September 18, and Martha and Nathan came in around ten- 19 eleven p.m. that night. Martha laid down her purse on 20 the coffee table in the living room, and she talked 21 with her kids for awhile, and then her children started 22 to go to bed. 23 Brooke went to sleep in the basement in the 24 little room off of that main room in the basement where 25 she had some bunk beds, and Billy went to sleep COURT OF CONMON PLEAS : MONTGOMERY COUNTY, OHIO 231ffi Opening Statement - State upstairs in the master bedroom in his mother's bed, and 2 Daniel went to sleep in that bedroom right at the top 3 of the stairs next to the bathroom in his bedroom, and Jesica then went to bed in her bedroom, which was to 5 the right of the stairs next to Daniel's. And that would be the last time that Billy, Brooke, or Daniel 7 would see their mother alive again. And that would be 8 the last time that anyone would see Nathan Marshall 9 alive again. And that would also be the last time that 10 any of them would see their sister alive, happy, and 11 healthy and when everyone else was asleep, the 12 Defendant arrived. 13 He parked his car in back behind the garage, 14 and he went through the back fence gate, and he walked up to the back kitchen'door, and he crept into the home. The door was not locked as it often wasn't at the Pheasant Hill address. He walked down the stiirs and he saw from those stairs Martha and Nathan sleeping on that couch in the basement. He did not know who Nathan was. He did not know that it was an ex-husband of Martha's. And you will hear that he left the house only to return some time later, and he parked his car back behind the garage, the same way he had the first time, and he went through the same back fence gate and 25 he went through the same back kitchen door, and he ever COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 231$ Opening Statement - State so carefully removed his shoes by the door, and with 2 the maul and the gloves in his hand, he walked down 3 stairs to the basement. He walk walked over to the 4 couch, and as Martha and Nathan slept on that couch, he 5 swung that maul. And he struck Martha and Nathan in 6 the face and in the head. You will hear that he struck them over and over and over again. He struck them 8 multiple times in the face and the head and to Nathan 9 also in the chest, and you will hear from the Coroner, 10 who will explain how many multiple chop injuries they 11 both sustained, what those injuries did to their bodies 12 and how they died. And you will also hear that the Defendant some time during that attack sexually 14 assaulted Martha Madewell as she lay on the floor next 15 to that couch, but that's not all because Brooke 16 Madewell, little Brooke Madewell, in the next room woke 17 up. She woke up to the sound of banging and the cries 16 of her mother and she will come in here and testify as 19 to the conversation she had with the Defendant, how the 20 Defendant told her to go back in her room, get dressed, 21 and wait until he came for her. 22 But the story is still not over because you 23 will also hear how the Defendant walked up, not one, 24 but two flights of stairs to the second floor, turned 25 to the right, and he crept into Jesica's bedroom. He COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 2329 Opening Statement - State had the maul, and you will hear that he struck Jesica 2 Young as she slept in her bed, and he struck her over and over and over again. He struck her In the face, 4 the head, the mouth, the neck, the chest and the legs. But it's still not over because Daniel woke 6 up. Sleeping in the next room, he woke up to the sound 7 of Jesica crying, and in a sleepy daze, he looked over at his alarm clock, and he will tell you he remembered 9 it being 1:51 a.m., and he got up, and he walked to his bedroom door, that same door that is just inches from Jesica's door, and when he opened that door, he came face to face with the Defendant. And he will'tell you the conversation he had with the Defendant, how the 14 Defendant very calmly and coolly told him to go back to 15 bed, that everything was fine, that Martha was in 16 talking to Jesica because Jesica was in a little bit of .17 trouble. And Daniel, in a sleepy daze, shut his door 18 and crawled back into bed, only to awake a few minutes 19 later wondering why the Defendant was in his home. 20 He got up again, he walk to the bedroom door, 21 and downstairs, and the first thing he noticed was that 22 the back kitchen door was wide open. He walked down 23 into that basement, and he noticed that Brooke was gone 24 from her bunk bed. And that's when he turned and 25 walked into the living room where he found his mother COURT OF COMMON PLEAS s MONTGOMERY COUNTY, OHIO 2321 Opening Statement - State lying on the floor covered with blankets and a coffee 2 table on top of her and when he pulled back the blankets over her head, he saw what he will describe as 4 her face covered in blood and her face covered in blood 5 with no signs of life, and he will tell you how he 6 found Nathan Marshall on the couch covered with a throw rug, and when he pulled that throw rug away from Nathan 8 Marshall's face, he will tell you that he thought 9 Nathan Marshall's head had been bashed in; that it, too, was covered in blood, and that there were no signs of life. He ran upstairs, he grabbed a cordless phone and he called 911, and that 911 call came in at 14 approximately 2:07 a.m., and as he's talking to the 911 15 operator, he walked back up the second flight of 16 stairs, and he went into his sister's bedroom, and he 17 found his sister lying in her bed covered in blood, 18 teeth knocked out, braces knocked out, moaning and 19 choking, choking on her blood. 20 And you'll hear from the paramedics who 21 arrived. Dayton paramedics, firefighters, and police 22 officers arrived within ten minutes, and those 23 paramedics will tell you how Jesica was combative 24 because she was fighting for air, how her face was so badly disfigured that they had to hold the air bag over COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 232 2 Opening Statement - State her mouth so she could breathe because her mouth had been split on either side, her teeth knocked out, and her braces knocked out. You will hear from the emergency room nurse at 5 Miami Valley Hospital, who treated Jesica Young before 6 she went into surgery, and she will tell you that when 7 Jesica came in, she observed part of Jesica's skull 8 exposed, and she observed braces coming out of the skin 9 of the upper and lower jaws, teeth knocked out, braces 10 knocked out, and chop injuries all over her body. And 11 you will not see pictures of how Jesica looked that 12 night because we don't have any, but you will see c 13 slides of some, but not all, of Jesica's injuries after 14 she was operated on because she lived for two days. 15 She died two days later. but that's not all. 16 The Defendant was arrested several hours 17 later. In the back seat of his car were Brooke and 18 Billy Madewell unharmed, and on the front seat of that 19 car, Martha Madewell's purse, and a copy of the decree 20 of dissolution. 21 The Defendant then spoke to the police, and 22 you will hear from that Detective who spoke to the 23 Defendant, and he will tell you how the Defendant 24 admitted to attacking Nathan, Martha, and Jesica, how 25 he admitted to having sex with Martha that night and COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 232$ Opening Statement - State how he showed no remorse for any of it. You will hear 2 from that Detective that the Defendant said repeatedly, 3 "I know I shouldn't say this, but I'm not sorry. I 4 haven't felt this good in weeks." You will hear from 5 the Detective how that was said more than one time in 6 that interview. 7 You will hear from that Detective that the Defendant appehred sober, coherent and was very polite 9 when he said all of those things. And you will hear 10 how the Defendant admitted to being over there earlier 11 that night, to seeing Martha and Nathan, to leaving and 12 getting that maul and that pair of gloves, and you saw ^ 13 the tool shed back behind.the Deer Bluff residence 14 where that maul and those gloves had been kept, and he 15 admitted to driving back over there in his rental car 16 and he admitted to the killings, and he admitted that 17 he had a change of clothes in his car, and he admitted 18 that after he left with the two youngest children in 19 the back seat, he threw his bloody clothes out the 20 window as he drove down the highway while the children 21 were asleep in the back. And you will hear how when 22 the police asked, "Why Jesica?" The Defendant said, 23 "Because she always disrespected me." 24 But that's not all. There's even more than 25 that, ladies and gentlemen, that you're going to hear COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 232# Opening Statement - Defense through the course of this trial, more testimony and 2 evidence that we will present to prove each and every 3 one of these elements of each and every one of the 4 counts and specifications beyond a reasonable doubt. 5 And we will prove that on September 18 of 2000, just 6 four days after the dissolution of that marriage, the 7 Defendant not only decided who lived and who died, he exercised the ultimate control over Martha Madewell by brutally taking her life along with the lives of Nathan Marshall and Jesica Young, and at the conclusion of this trial after you have heard all of the testimony and evidence presented, we're going to ask that you come back and return verdicts of guilty to each and every one.of the counts and specifications charged. We are going to ask that you find this 16 Defendant guilty as charged. I thank you for your 17 attention. 18 THE COURT: Mr. Greer? 19 OPENING STATEMENT 20 BY MR. GREER: 21 Ladies and gentlemen, what you just had 22 outlined to you we can all.agree, I think, is a wild 23 and terrible and sad and crazy story. And what you're 24 going to hear in the evidence has significant 25 differences in it, but it's a sad and wild and crazy COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 2325 Opening Statement - Defense and terrible story, and it's indeed in part that that causes there to be a failure in the proof of the 3 essential elements of the crimes that are charged as 4 opposed to other crimes. What you're going to find after you have heard 6 all of the evidenbe is that Larry Gapen is one of us, that both before and after September 18 of the year 8 2000, he was perceived by every one who knew him or who 9 encountered him as a nice man, a normal man, a hard- 10 working man, a self-giving man, as the kind of man you'd want to have as your next-door neighbor, as the kind of man you'd be privileged to have coach your kids in football or baseball. How does that square with the horrible story you have just heard? 15 That's really what this case is about, and 16 before we get into the events of September 18 and the 17 events leading up to that, let's just get a few outline 18 background facts straight, and the evidence is going to 19 show you the cast of characters that are involved in 20 this awful drama, and here's a kind of outline that 21 takes you from Larry's date of birth back in 1948 up to 22 September 18 of 2000. Martha was born fifteen years 23 later. There is a fifteen years age difference between 24 the two of them. She was born in '63. Larry got 25 married to a lady named Virginia right about the time COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 2326 Opening Statement - Defense he came out of high school, and she was in high school. 2 Too young really, but that was his first marriage and 3 it ended in a divorce in 1975. He couldn't keep that 4 relationship together. She went out with other men. 5 In that marriage, he had one child, a girl named Holly 6 at the end of 1966. 7 He had a second marriage to another lady named 8 Pam. That marriage was in 1977, ended in a separation 9 in '88. Pam was an alcoholic and later died of 10 cirrhosis of the liver. It was a rough marriage, and a 11 lot of money was spent trying to get treatment for her. 12 There were two children born of that marriage, Charity, Z. 13 born in '79 and Jimmy born in '82. 14 In the meantime, Martha had had several 15 marriages. In her first marriage to a man named 16 Marshall, she had a son, Daniel, who was born in '83. 17 In a second marriage to a man named Young, she had a 18 child named Jesica, who was born in '87, and in a third 19 marriage to a man named Madewell, whose name she always 20 kept thereafter, she had two children, Brooke, born in 21 '91, and Billy in '93. 22 I guess it's not a pattern unlike a lot of 23 patterns in society. Larry and Martha meet in '93. 24 He's been separated from Pam. The divorce with Pam goes through in '94. That's kind of the background of COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 232 Opening Statement - Defense these people that are involved in this awful story that 2 you're going to be listening to for the next couple of 3 weeks. Those are the people who are involved. Larry 4 and Martha get together with their two collections of -children. Holly is grown up and married at this time 6 so it's Jimmy and Charity from Larry's household, and 7 it's the four kids from-- Daniel, who's almost the 8 same age as Jimmy, down to little Brooke and Billy in 9 Martha's. So suddenly we have got these six kids put 10 together in a single relationship, and then January 12 11 of 1997, Larry and Martha get married. 12 They have a dissolution hearing on September 9 13 of 2000. On September 14 of 2000, the decree of 14 dissolution goes on, and on September 18 of 2000, 15 Martha is dead as well as her first husband and Jesica 16 will be dead shortly thereafter. 17 Well, every murder case is a mystery, and this 18 one is no exception. There are all those simple 19 questions that are hard to answer sometimes. What? 20 That's not a question here. We know what happened. 21 Larry killed those three people, and he did it with a 22 wood splitting maul. 23 Where? We know where. It was at Pheasant 24 Hill. 25 When? We know when it happened. COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 2328 Opening Statement - Defense Who? We know who it was. 2 How? We know how it happened. 3 The one question that is the troublesome 4 question is the question why. And that's where we get into the issues that are going to be the issues that 6 you're going to have to resolve, and they're issues 7 that are defined in that chart that talked about 8 aggravated murder and these other crimes. 9 Aggravated murder, the first count-- As you 10 heard, there are four claims of aggravated murder as to 11 each of these individuals. The first claim as to each 12 is the classic aggravated murder, which is a purposeful 13 killing with prior calculation and design, and that's a 14 question here. The real question in this case is: Was 15 this prior calculation and design, or wasn't it? And I 16 submit to you there are two bodies of evidence in this 17 case that refute the claim that these are murders with 18 prior calculation and design. First are the 19 circumstances surrounding the murders themselves. 20 Think about that. 21 Second are the circumstances leading up to the 22 murders. How did the circumstances of the murders-- 23 They talk about he had a change of clothes in his car. 24 I don't think there's going to be any evidence of that. It is true that the maul was brought to the place, but COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 233m Opening Statement - Defense just went berserk, just went berserk. 2 The other crimes that are alleged are 3 aggravated burglary, and you will find that there's a 4 lack of critical elements of that crime here as far as 5 intent is concerned. Larry was coming and going, and 6 Martha was coming and going at his abode. That was known, and the issues of intent simply can't be 8 established here. 9 The third angle to try to get an aggravated 10 murder charge in this case is based upon a claim of rape, and in this bizarre irrational event that happened, there was a spilling of semen, but there was no rape. Rape is defined as the penetration with the penis into the vagina or the anus or another orifice, 15 and that didn't happen, and there's no evidence of 16 anything, any sexual thing, happening until clearly 17 these people were dead. What there is evidence of is 18 semen on Martha's stomach and on her thigh, and Martha 19 lying on her back. The Coroner did a meticulous job in 20 this case, but found no evidence of penetration of any 21 orifice. So this was a bizarre event, but it was not 22 rape. 23 The final effort to reach a charge of 24 aggravated murder is a claim that it's a murder that 25 happened in the course of an aggravated robbery. And COURT OF COMMON PLSAS : MONTGOMERY COUNTY, OHIO 2331 Opening Statement - Defense there's no question about it, as Larry left the home 2 that evening, he took Martha's purse with him, and 3 Martha's purse was found in his car with a bunch of 4 junk in it essentially, but the crime of aggravated robbery means doing serious physical harm to someone in 6 order to steal something or having stolen something, 7 doing serious physical harm to somebody while you're 8 trying to flee from the act of stealing something, and 9 that's not what happened here. 10 This horrible, bizarre explosive event 11 occurred, and after it was all over, he picked up a purse and took it with him, which is simply petty theft. No matter how disgusting, how distasteful, how 14 repugnant the horrible facts of this case are, those 15 are the problems of the case when you try to carry what 16 happened here into a charge of aggravated murder on 17 whatever theory you can devise as a human being. 18 I have already said that one of the things 19 that knocks out the claim that this was a murder by 20 prior calculation and design is the bizarre, irrational 21 nature of the event itself. I have said that the other 22 thing which you'll hear in the evidence are the events 23 and circumstances leading up to this event, which is 24 the only way, the only way, that we as rational human beings can attempt to answer that big question that COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 233 Opening Statement - Defense this case raises, which is the why question. Why? 2 Why? Why did this happen? 3 Because you will hear that Larry was not only 4 a nice, hard-working, decent guy, but he was 5 essentially a passive sort of fellow. He was not the kind of coach that hollered at kids or slapped them on 7 the head or anything else. He was a quiet man, a man 8 with a sense of humor, a man liked by all who knew him. You have seen the basic facts of his personal lifa. Here's what he did outside the world of his personal life. He'd been a hard working guy his entire adult life. Before he got out of high school, he was already starting on a series of jobs. Worked for IGA for awhile, Lawson's, Liberal, for Gerber, and then he started into life as a delivery man for soda companies. He was a delivery man, route man for 7Up, for a period from '73 up to '77, for four years, where he drove a truck and delivered 7Up to grocery stores, carryouts 19 and so forth and so on. That's the way he earned his 20 living. 21 He then in 1977 went to work for Pepsi-Cola 22 and did the same kind of work. He was all over this 23 county, everywhere, delivering to every commercial 24 establishment that sells Pepsi Cola, and he was a hard 25 working guy, worked all the time, tried to support his COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 233$ Opening Statement - Defense family. His second wife, as I said; was a major 2 problem, a major expense, because of her problem with 3 alcohol, and he worked for Pepsi-Cola for 21 years until 1998, February of 1998, he lost his job at Pepsi- Cola, and the evidence will tell you why he lost his 6 job at Pepsi-Cola, not that he admitted to it. 7 Shortly after that, he started to work for itPS 8 or Federal Express Ground up. Until the time of September 18, when these events occurred, he was 10 driving typically a short route in the afternoon, and 11 then every night he would drive a Federal Express route driving his truck down to Louisville, Kentucky and back e- 12 13 to make the run for them. That was his life. 14 So he'd been gone almost every night during 15 the working week driving that Federal Express truck. 16 The guy worked real hard. And in addition to that, 17 back in 1990, he got involved-- His son, Jimmy, was 18 growing up as a kid, and Larry, as a lot of fathe=s do, 19 got involved in coaching, and he got deeply involved in 20 the Huber Heights' little Football League for kids up 21 through the sixth grade, 7th grade or early, early 22 junior high school. Larry-essentially was the 6th grade coach, became a member of the Board of the organiaation that did that. He and other people every year in November took a huge entourage of kids down to COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 2334 Opening Statement - Defense Florida to play in the National Peewee Football 2 championships. He took the children of lots of Huber 3 Heights' parents down to Florida and was their mentor. 4 He was a good coach. Everybody who dealt with him 5 liked the man, and he was deeply involved in giving himself to all those kids that grew up in that league. 7 Over fifty years, no criminal conviction for 8 anything in his life. Two marriages that went bad, and 9 then in 1973, he and Martha met. And there were 10 wonderful things about that relationship, and there 11 were terrible things about that relationship, and there 12 were things that got worse as the positives and the i, 13 negatives started to bounce back and forth with each 14 other, but became a hopelessly dysfunctional manner. 15 He met Martha while she was working in the 16 bank and her smile won his heart, and when they put 17 these two families together, it was not only more than 18 Larry was capable of providing bread for, but it was a 19 situation where there were natural rivalries and 20 jealousies and some jealousies of Martha between Daniel 21 and Jimmy as they grew up--who they were running around 22 with and who was going to accomplish what and that sort 23 of thing, and it created a volatile family situation. 24 It created a volatile family situation that got worse 25 as the kids grew older into their teen years. Martha COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 233 Opening Statement - Defense was very protective of and very indulgent as far as her son's behavior was concerned. Larry was the coach, and 3 he wanted everybody to try and do the right thing, and 4 that didn't always work, and it led to family disputes. 5 Things were wonderful for a awhile as they are in this sort of thing. In June of '96, just 7 before their marriage, they acquired that beautiful home on Deer Bluff that you all saw this morning. 9 Pretty nice place to live for a guy living on Pepsi- Cola deliveries, and Martha was a demanding younger wife who wanted to live above their means, and Larry would do anything for her, and he did do anything for her, including selling Pepsi-Cola off the truck off the side, which nobody should do. He did, and it cost him his Job. And they had good cars. They tried to do 16 everything they could for their children. They tried 17 to do more than they were economically or emotionally 18 capable of doing. All these positives and negatives 19 continued to bounce back and forth. 20 When Charity becomes 18 in February of 1998, 21 Martha says it's time for Charity to be on her own. 22 Let's get her out of the house, and we won't have that 23 mouth to feed essentially so Charity is kind of pushed 24 out of the house at age 18. That leaves one of Larry's 25 r- children and still Martha's four. I guess it's June of COURT OF COMMON PLEAS ; MONTGOMERY COUNTY, OHIO 2336 Opening Statement - Defense '98 when that happens. By the time you get to late '98 2 and early '99, these problems, positive and negative, 3 in the family are getting to the point of violence. 4 Martha beats Larry up in November of '98, and the 5 police are called to the residence. Larry's bleeding 6 and his nose is cut, and so forth and so on. Martha 7 got mad at him and physically beat him up. He posted a 8 bond to bring her back home. He loved her. By 9 February of '99, things are getting worse and worse. 10 June of 1999, Daniel, who is now a big, strapping 11 teenager, a star football player, beats Larry up, and 12 the police again come out for that event, and these c 13 become regular events so there's polarization and 14 friction in the family, and Larry trying to hold this 15 relationship together and being essentially physically 16 abused by both his stepson and his wife, but still 17 trying to keep things going with Martha. 18 Daniel, because of the trouble he gets into in 19 the summer of '99, in the fall of '99 is sent off to 20 Hillsboro where his grandfather has a farm with the 21 thought that if they put him in that sort of a stricter 22 environment, maybe that will get him turned around and 23 on the right path. 24 After he leaves, Martha gets upset that now 25 her son is gone, but Larry's son, the same age, Jimmy, COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 2337 Opening Statement - Defense is still there, and that leads to a separation a few 2 months later in November where Larry and Jimmy are pushed out of the house so now the household at Deer 4 Bluff is Martha and the two little ones. The two little ones are personally dear to Larry. Billy, the 6 little boy, was just two months old when he and Martha first met and started to get together. Larry and Jimmy 8 are thrust out of the house in November of '99. They 9 go for a while, stay with a friend of Larry's, and then 10 in March of 2000, they move in with Larry's older 11 daughter, Charity, at that apartment on Brusman, .Now 12 you have got what each of those places you saw this ^. 13 morning are. Brusman is where Charity's apartment was 14 where Jimmy and Larry were living from March of 2000 up 15 until the time of this sad event in September. Deer 16 Bluff is the beautiful family home that became a house 17 of turmoil an kind of broke up in the fall of '99, and 18 the final place where we stopped is, of course, the 19 scene where these crimes occurred and is a condominium 20 that Martha moved into, and Larry helped her move her 21 stuff into it on August 4 of 2000. 22 While there is a separation, there's a 23 continuing relationship, both on the part of Martha and 24 on the part of Larry, to get back together. They're 25 out all the time together. They're seeing each other. COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 233$ Opening Statement - Defense They're going back and forth from one place to the 2 other. They have weekends that are wonderful, 3 honeymoon weekends, and other weekends that are total turmoil, and there's disputes going on about the children and so forth and so on. Larry's drinking too 6 much beer. Martha's drinking too much, stress relievers that go beyond what stress relievers need to 8 be, and it's going back and forth like this until we get up into the summer of 2000, and Martha at that point is talking about breaking the relationship up, and Larry can't let go of this relationship. He loves that lady. June the 24th of 2000, Larry goes into the 14 home at Deer Bluff. Martha is asleep on the couch. He 15 wants to talk to her to try to persuade her to come 16 back into the relationship, and he ties up her feet 17 while she's asleep so she can't get away so he can sit 18 down and talk with her. Well, she wakes up and there 19 is a fracas, and Larry gets arrested for domestic 20 violence although all he was doing was trying to tie 21 her feet so that he could talk to her. That's the 22 event that leads to the house arrest that Miss Ballard 23 told you about. Larry's arrested on the 24 of June, 24 he's released on the 30th of June. He's placed on this 25 home monitoring, which is violated by both Larry and COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 233 Opening Statement - Defense Martha, the one who caused it to be put on, from the 2 day it started. 3 As soon as he gets home, Martha is calling up 4 and coming over with a six pack of beer and romance and so forth and so on, and the turmoil continues to go 6 back and forth, but the thing is winding down, and Martha is more and more pulling away. Larry is not 8 letting go. Larry is brooding. There are positive things that happen he thinks are going to bring her back. He's talking to people saying, "I think we can put this back together," even when they stand up together, and he lets her have the dissolution r L 13 willingly. Whatever Martha wants, Martha gets. 14 On September.9, they're still talking with 15 each other. She's still bringing Billy over for Larry 16 to babysit him. Larry is coaching Billy's football 17 team. It's this strange relationship, and this whole 18 thing has been building and churning now for years, and 19 it's building up to what is going to end as an •20 explosion, and that's exactly what happens here. 2 Larry, to all outward appearances, aside from 22 brooding and drinking too much beer and sitting around 23 and trying to think of ways he can get back together 24 with Martha is leading his life. He's coaching Little __ 25 League football. He's dealing normally with everything COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 234( Opening Statement - Defense about him. It is true that the day, Saturday-- 2 September 18 is the early hours of a Monday morning. 3 On Saturday, he's with little Billy coaching him in a 4 football game, and they have the football game, and 5 they do well. When the game is over, there's another 6 lady that's got a kid on the team and an older son that 7 looks up to Larry. They regard him as a mentor. The 8 boys want Larry to take him out to dinner, and they go out to dinner Saturday night. He lets the boys have a ride in his Corvette car. He takes them, and they play a little pool. He talks about his hopes that he's going to get back together again with Martha, and indeed on Sunday, the day leading up to this awful 14 early hour Monday morning event, he's sitting around. 15 He's brooding around the house, but watches football. 16 He goes out Sunday night with his son, Jimmy, and 17 Jimmy's girlfriend, Kaycee. They'll testify here, and 1B they'll tell you that everything seemed normal. In 19 fact, Larry was Larry up until the moment that he saw 20 Martha on the couch with an unknown man not wearing his 21 pants, and suddenly, the volcano erupted, and all this irrational behavior occurred. Wild, explosive, crazy, but not something that was done with prior calculation and design, not something that was done in connection with other crimes. COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 2341 Opening Statement - Defense It's true, the evidence here is going to show 2 you a sad and terrible story. That's what the facts 3 are. It's sad and it's terrible, but it's the story of 4 a nice man, a nice man who after a prolonged period of 5 stress,-turmoil, and depression went berserk, lost all 6 control, went totally out of control. It's not, I submit to you, after you have 8 heard all the evidence, after you heard all the law and 9 try to apply it with your common sense; it's not a 10 story of aggravated murder based upon prior calculation 11 and design nor is it a felony murder based upon 12 aggravated burglary, rape or aggravated robbery. 13 After over a half century as a productive, 14 hard working member of our society, Larry got pushed to 15 the breaking point, and he broke. That's what the 16 facts of this case are, as I think you'll find them 17 from the evidence, and there's nothing that either the 18 prosecution or the defense can do to change those 19 facts. 20 THS COURT: Mr. Daidone? Your first 21 witness, please. 22 MR. DAIDONE: Your Honor, we have 23 discussed that we need to set up the courtroom for the 24 first witness. 25 THE COURT: We will take a break then. COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO Exhibit 7 Closing Arguments -- Trial Phase (Transcript pages 3677-3779) 3677 Clostng Argument - State reso2ving the issues in this oase. MS. HOHSQN: xharik you, Your Honor. CLOSING AkGUMENT NY MS. HOBSON: May it plaase the Cuuzt, counsel xor the State, cqunsei for the Detsnse, lsdies and geatlemen of the JarY, ybu are here tpday because of the aCtibns of one man. That's the Aefendant, Larry tlagen. You are here today solely because of his deiiberate actipns on the night of September 18 in the year 2000. You have been selected as the triers of €act in this oase. You have the duty to be the trier of the #acts to determine what the facts are in the case based npon the evidence that you h®ard. You are here today because of his actions, the resultant and brutal termination of the lives of three individuals, Nathan Marshall, Martha Madewellr and Jesica Young. Hased upon hia actions on that night, the State of Ohio charged the Defendant with a multiple aumber of arlsmes. In Paat, he was charged with a total of sixteen different counts. Twelve af those Counts deal with aggravated murder, and you say there are only tbree victims, but in the State of Ohio, there are ditfexent types of.aggravated murder. In the State of Ohio, they have diffetent elements for those different COURT qF COMMON PLNhS : MaNTCOMEBX cOMM^ oniQ 3678 Clpsing Argnlnent - Stata types of murder, e,nO we can charge and we have chaacged the Defendant with violating thb8e particular charges. Twelve different counts whtch th+a $tate has provided evidence to you on. FFe has also been charged with the counts of escape, cauttt of aggravated burglary, one count of rapa againat Martha Madewe3.1 and one count of aggxavatOri robbexy. As you sat attentively asxd you Zlstened to all the evidencae irt this case and you are again the sole txiers of the €aots. YoU datoxmina what the facts are, vrhat the evidence showad. The State •of Ohio aubmixs to you that we have, 12 in. fact, met our burden of proving each and every elelpeixt of the cr#.mse charged againot the Defendant beyond a reasonalale doubt. Let's begin with the first count, and that is one of efaape. The State chArged the Asfendant that between tha dates of 9eptember 15, 2000, and Septtaber 18, 2000, in the Cpunt°y of biantgpmesy, • in the State of Ohlo, that the 1lefendant, Larry JameB flapen, • kriowing that he was under deteNtion for the charge of abduction or being reckless tn that regard did purposely break or attempt to break such detenti.an.or purposely €ail to return to deterstio3n following temporary leave gr4atQd 24 for a specific purpose af a limited period. Naw, to help you with this, we have brpught the charts. These COURT Ok' COMMON PLNAS s MO:NTtfoMZitY Cb'UN'T1!', OHIO $4679 Closing Argument - State are the element8 oi aacape. Now, you heard the testimony of Nicholas Smith and Jerome Broner from Prew xrial Sezvices. You heard their testimony th,at the Defendant had beeri placed on electronic home detention for the oharge of abduction. And they told you that at the tiZe that he was plBCed on detention with eleCttoniG homa detention, escuse me, that he waa living at a BpdcigiC 4ddxeSNi and that that address was verifi.ed. It was hia dauqhter's address of 133 Nrusman in Vandalia, Ohio. That information being varified, Pxe-Tr9.a1 Services through the person of Nicholas Smith weat to that reai.delnoe and met with the Defebdant, Larry Gapsn, placed an ankle bracelet on his ankle, explained to him how the whoie thing worked, the tmonStoring, and he know at that point 3.-n time he was on eleCtTo2ttC hoale detenti9n. Now tho addreaa where ChaX'ity lived was 132 Orttsmdll, and you hoard her tastiamonp and you hgazd hex brother's testimony, Jimmy (3apen, all of them said that at that time in the manth of Ju].Y, year 2000, when the Defendant was p].aced on eleotronio homv dotention, the Defendant vas living at that addrns$, and that address is located in Montgomery Gflun,tX, Ohio. So we know for a faok that the parsori we're talking about is Larry Gapen. xiow, how did he knoar that he was under CpUR'1` OF COMMON PLF'.AS : MQN'J,'K30ORY COUtiTYr C>HxC1 3600 C3.oging blrgustent - State dotent.ian tor the charge of abduction? PTe3.1., that's simpia. You heard the testimony from Jerome Rroner. You heard Niaholaa Smith'a taotimony. You heard the faat that there because an 9.ndictment isaued for the charge o$ abductian and that that indictmont was filed July S. Y'.ear 2000, and that the aase number for that was 2000 CR 1900. Vou heard the testimony of Nicholas Smith whgn he talked about he went out t4 the hofae of Larry Gapon, and he want over certain forms with him, and those forms vere the acsknowladgment of conditional own recogaUanne. That's State's .Rxh1bit 119, arid in that form, it talked apout the aonditions that he vould be required to fulfill. kIe also 3aad, iarry Gapen aiign that form so that he knew what responsibilities he would have. ]ie also at the sam+a time went over the form with Larry Gapen aalxed the conditional owt, recognizance of the accused. He went over that form with him. It carrims the same case nuinber, and it also listed the char$e of abduction. That's 5tuta's Exhibit 118. There wras a third form, and that #ox7n was called the speuifio conditions of oonditional own recognisance bond, SHDP, that placed hlm specifically on elaotronic home.moni,toring. That carried the exact satme case number that the abduction charge carries. CQART pE COMMON i'T,RA3 : MONTGOMERY CO[fBTY. OHIO 3b$]. C3.osing Arguraent - State 1 The Defendant had all these items in his pc,tsffies8ion, 2 and he knpvt, he knew that he had been charged with 3 abduction, and he knew that he ►aas being placed on 4 electronic home detention for that, and moxe so than 5 that, at the time he first got out of jail, he was told B at that t5.se that he was there for a charge of 7 abdubtion and that he was xales.sed on bond, and the S bond was not only electxonic home detention but was 4 also a ten thousand dollar cash bond. Fie knsw at the 10 time of hX* arraignment what the charge was, that it 11 was abduction. If he hadsi't known he was being held 12 ior detention on a Cha.rge of abduction, then he never ^.. 3.3 would hayo aaked for work release. 1t would havo made 14 no sense. so he know that he was there for that charge 15 under d6teAtion. 16 Now, you look at the word knowingly, what does 17 that moan? A person acts knowingly regardless of his 16 putpose when be is aware that his con.duct will pro?sably 19 be of a certain hature, and knataledga can be determined 20 from all facta and.circumstances iri evidence. You haver 21. to determine #roirt thoae f4rats atid c}.xczimstanaes whether 22 there ekisted at the time in the *ind of the De£endant 23 an awarenssa`that he was breaking detention. So you 24 keep in mind what ki7owing is. ^-^ 25 And what is detention? Well, detention means CpURT OF COAaMON PLEAS : MQNTCrOMERY CQUN'SX P 01110 3662 Closing Argument - State oorztinemant in any public or pri+rate facility foz custody of persons charged with or aonvioted of aximes of this *tate or another state or any laws of the United States. Tie Court wil}. Instruot you that electronically monitored house arrest is a foztn of canstraiiit that const3.tutes datootlon i.ii the state of bhla. tiaw, in this partiauzar aase, when we look at how did Larxy ddpen purposely brea3t or attempt to break that detention; what evl.donce has the State provided to you? First of all, look at the definition of purpoSelp. A parson acts purPose.ly when it's h9,8 specific Iatent to cause.a certain xesult. $Qw, during the times of September 15' and September 1$, 2000, the Defendant was on eleatroni.c home detention, btat hp also was granted work release as an additional cundition. So what that raeant, xs` you hoard from N3,ehoJ.as Smith and you heard from.Jerome 13ronez is that the Aafendaut was requiXed to stsir in his homo at all times except durlng those ti.mes wliere he was supposed to bo a,t vark. You hsard the teatimorry of Mr. tittines when the Defendant's sckedulo with rgdaral lCxpross, what routes he ran, what times.he was supposed to be there. So was he there at all those times? You heard the testimony. COURT OP' CONJM►9M PLEAS : MONTi3OMERY CC1iWTX. 0910 3683 Closing Aromant - State No, ho w4s at games, football games. He was out at Appleby's in kIuber Heights. Hd was Aut to Cold Beer and Choeseburgers iz Huber Heights. He even went to Springfield. If you look at the speaific dates that we're re#erring to, esause me, September 15, where was he? At work? No. At home? No. He was at the football gamo at Huber Heights watching the kids play. What about Saturday, the 16th of September? Supposed to be workinS7 Yes. Wds'he working? No. ]Ca the morning ho wos coaching Little League kids from about nine a.m. to twelve p.m. and later in the evening about six P.m., be went out to dinner at App3,eby's with Hol1y tsio3 Mor+3ah and her kid. And not only did he just go out tta dinner, he decided to go bac7c and take t'hem for a ride in his Corvette, and to dq that, You heard the testimony of Heather Morgan that they left the restaurant, that they drov4 to his house on 93ear HIUff, and they got the CorvOtte A,nd that they drove a Whi1e joy xiditigr ali the time he's supposed to be either at home or at work. Did they just go to Deex SXuff and go joy riding? No. Where else did they go that 8aturday7 They went to $pring$ie3d, Ohio, part a# the joy ride, and is that all they did? .kdo.. They also stopped and played pool in Springfield, Ohio. All this all the time when he COURT OF COMMON T'LEAS : MQNTdqMH12Y COUN'1'y r OFIIl7 3684 Closing Argument - State was supposed to be either at work or at home, on el+sctroniC home detention. What about the 17thp mbat was SuMdap. 17th of Septnmber, v7el1, we know for a faat from the Aefendant's 4wn statement as testified to by Detective Salyer that around 7:30 he wasn't at home, and he wasn't at work. He was at the home of Martha Madawell; and you kRow for a.faat that he iuft. Aacordi,ng to his statemant, he came back again later on, but that was the next day, but before that next day ooGurrad, what did he do on the 17th? He wen.t to Cold Beer and Cheeseburgers iu Huber Heights, and he met his son, Jimrax, and hie son's girlfriend, Ytaeee Miller. Ttacee M3.ller told you that and JimZX told you that, that on that partloul.ar day he vas thnro with them, -Jimtty txxso told yc>u that he knaw his father was on electronic home deteritiori, and that he waon't 8uPE►qaed to be out. Charity told you that also. He wasn't at work, and ho w4sxi ' t at home. You also hoard the testimony of witnessos of the different places that he would go, d3fterent things that he vrould do when he was out on glectronic home deteritiC►n. You lopk at the date of the 18tts, the early Yiamrs of tho 18th, September 18, year 2000. Was the Defendant at homn? was the Defendant at work? No, the COURT dF WMMaN kLHAB : 1KONTWM'Y COUNTY, OHIO 3685 Closing Argument - State Defendant sorae time after 18:30 a.m., he aame back to the residence af Martha Madawell, 6255 Pheasant Hill Dayton, Ohio, and be committed three separate killings while he wa.s on slact:;oni.c home detention. He vrasn't at hoade, and he wasn't at arork. Now, I submit to you that based upoA that ini'ormation, based upon the evidende.that you heard, you know the Aefendaut was under dgtention and you know what does it constitute to break detention? Hreat just ►qsans to simply terminate the st4tus of being iU custody, the status of being detai.ned. The Defendant was no longer being detained. And how did hH even accomplish that? Well, he aaaompllshed it workwise because he had other people doing his routes. Iie was lying. He didn't rirovlde Pre-trial Servipes with proper lntox"tion. He didn`t advise them that he wasn't doing hi:s own routes. That's because }xe didn't want to be bound by tht rules of elaetxoula hnrao dexention, and that aorsstltutes asca". The terms of e1B4tronia home detention was sDeaiff.aally sPeZled out to the Defendant. He kaaew he was not to leave his lxpme unless he went to work under ageaified hours and conditions, and the Defendant in this aase ignored;.totalxy ignored, the roquirsmenta that he kstew ahout, that he signed his nauto to, and he COURT (W COMMON yb$AS : MONTGOMERY CS7tIPiTX, OHIO 3686 Closing Argument - state ohose not to abide by those rules. He chose to do What he wanted to do. ge ahose to run around town, to go wherever he wahted to go, and do whatever he wanted, xn this particular case, whether he was on electrpnla honne detorttion or not doesn't matter because he didn't care. He did not care. He was going to do what be wanted to do, Whether or not he had work release didn't utatter, because he found a way around that. tIqk was able to tell pou, tel.l everybody I don' t havw to #bi.de by these rules. T don't have to abide by the rules of staying in -my home or being at work when I'm supposed to. I sublait to you that based upon all the evidence that you heard. You heard the testimony from VI, tncorporatad about how the alerts work. There was no way to get an alert on some of these days beoause hq had other people working for him. He was doaelving everY one . I submit to you that based upon all that the Defendant knew he was under detention for the charge oE abduction and that ne was reCkless in that regard, Al], reCka.ess means is that You have a total di8regard #or the situation, and that's what the Defendant had here. There's no question that he broke that detentlorn. Tklere's no queration that he purposely failed to return COE1$T pp CQMbI02i pLVAls :_MC3PfTGClNtERY CQIyNTX, OHIO 3687 Closing Argument - state z to his home when he was supposed to. TYeere's no 2 question that he purposely failed to go to work on 3 those datos betoaoen September 15th and 18th in the year 4 2000. x submit to you that there was evidence beyond a 5 reasoriab7.n doubt of each and every one of those 6 elements for ascape for you to find him guilty of tihat. 9 Th+s'DePendant's seaoxid count that he's 8 charged witb is aggravated Yturglary. The State charges 9 that on a; about September 18, year 2000, in the County 10 of Montgomery, State of Ohio that tht Defendant by 11 farce, stealth, or deception did trespaos 9.n an 12 occupied structurer to wit,, a residence located at 6255 13 Pheasant HI11 Drive, baytoss, Ohio or in a separately 14 secured ax' separately occupied portion of that 35 struoturb and that the person othor than h9.mseif was 7,6 present 4nd that he had the purpose at that time to 17 commit in that structure any orW na1 offan.nt and did 18 inflict or attempt or threaten to inflict phYsical harm 19 to anothex parsori, 20 These are.yqur elements of aggravated al burglary. No question that these did happen on 22 septosnber 1$th, year 2000. You hoard testimony from 23 Daniel Marshall. You heard testimony from Brook® 24 Marshall that on thts date that the Defendaat, Larry 25 Gapers, was in tbeir home uni,nVited, unannaunood; that rw; C0U1tT pF COMMON PLEA9 _ a Mp2TrUB7EItX C(3t7NTY, OItIO 3688 Closing Argument - Btato their home was at 6255 Pheasant Hill and that it was in Mo»t3omery coutlty, Ohio. Now you look at fihet and you talk about force. Was there force, stealth, and decePtion by Larry Qapen? Yge, there was. '^orCe means any vinlence, compulsion, effort, or constraint exerted or used by any means upon or against a thing to gain entratce. Any force, hny uiGlerice, any camNulsion. The i?ofendant told you in his 8tatoment, he said that he Was there around 7;30 aind that he came in the back door through the kitchen area, trio unZockgd baak door. The fact that it was unlocked makes no difference beoause the door was closed. wtten the door's closed and You o-pen a door, that exerts force on that door and that's opening 4n unlockod dpor can still be force. Jaut there's another thing. tie said when ho qame iA, he cried out, and nobody responded. And then he went downstairs and°he saw Martba Madewell and an unk,now,n maik dowz► there, and he d9,dn't say anything at that point in time. He Just left, but-he says he oame back later on the 18th, later after 12:30, and what was the differentsd in the way this happenedl when he came back this time, be came through the same unlocked door, the closed door, t+ut he didn't ca].l out. In fs.ct, he took his ahoes off. So he snuck Ct7pRT OF COMMON PLVAS s M+UNTGC ►AiBRY C4tlA1TY, 0920 3689 Closing Argutaent - State in at that time, and hO cama dowa the stairs. There's a di.iferariva, a major diEferance. Now, Defense may want you to believe that this tsan had been going over to this hou.sp all the time, that he was comixsg and gvitg. Iie's been over there. He was aquest of the people that ],lved there. The only ones who liveci in that house was Martha Madeweli, Jasica Young, Daniel Mar6ha].l, 8rooke and 811ly Madewell. They lived at that addre$s at 6235 Pheasant H7.11 Road In Aayton, Ohio. The d3efeAlant didn't live there. The Ae£andant nover lived there. He had no xeaSon to be there except at the time when they may have authorizad his to bs there. You heard testimony from different witnesses that the Defehdarrt would take the ki.ds to practice or' he would take them to games and he would bring them back and forth to the houso at that time. That's during the day. You heard teStimdny that the Defendant was over there on social gatherings, barbecues, tourth of July, things iixo that. The fact that you allow an inda.v3.dua1 to oome to your home as a guest for aarta3,A oCaasions or to drog people off or to come in every now and then does not glve •you the right to be 1n their home any day, anytime, or after 1200 in the morning. tTta your COURT OF COMMpN P&EAS : tMt7 TQOMit'Si CpUti'k'Y. DFIID 3690 Glosing.A.rgument - State comon sense. It that is ooxreot, then anybody who allows anyone to come to their house at any point in time subjects themaelves to that person being able to say, "x oan aome in here at aartime Y want to come vhsther you want me there or not, whether x'm inVited or not." You have to talk about trespass and iooh at whetk:er the Defendant is a trespasser itt this aituation. Trespass means tha,t a person without privilegq to do so knowingly cntered on to the 3.and or the prainises of a.nother, xn this Caae at this time the Defendant was a trespasser. No one gave him permission to come i.nto the home at the 7:30 houaC. No one gave him parmtssion to come into the home attar 12:30 ozt the 18tti, the early morning hours of that ddte in the year 2000. The Defendant had no proprietary interest in the proporty so he had,no reason to be there. Martha Madewsll nerrsr gave him consent to come in at that t9me. Daninl never gave him Conserit to come in at that time. Drooks and Billy never gave him consent to aoma, and Jesiaa never gave him consent to coare in at that time. And I' 3.7. te11 you one other thing that you have to look at. When You a11aw gussts to cqme lnto COURT 4k' COMMON P'LEAB : MONTGOMERY COUNTY, OHIO 3691 Closing Argum- erit - State 1 your home, you allow them to raame into your home for 2 lawf'ul reasons. You do riot al.low them, consent to 3 them, coming into your ho9« to commi.t a004W.td 4gaintt 4 you, your family members, or any of your guests. 5 5o you he,+re to look at the Asfendant. Ts be a 6 trospasser? Has the State proven tha,t? Yes. Brooke 7 testitied that she saa him there that night. She 8 testified whera her room was iocate,d. She tastified 9 that he Va5 down in the basement. Nathan (sic) 10 testified that the Aefexidant was upstairs on the second 11 level, $md he wasn't supposed to be thar*. You have 12 the Defendant &neaking into the door, sneaking in the rw 13 back door, sneaking dawn the stairs, s'bo+as off. All of 14 that goes to stealth, sq by force and by steal.th: LdxxY 15 t3apen did, in fact, trespass in an occupied structure, 7,6 and all occupied structure means is that it's a house 17 or buildf.ng or structure of some kind that i.s occupied is as the permanent or temporary habitation of any pek'son, 19 and I havs already told you the poople*who lived there. 20 Brooke told you vho lived there. iianiel told you who 21 lived there. The one person who d9.d not live there was 22 the Defenclant. 23 You know fxom all the evidence that you heard 24 that tha address that we have been talking dbout is 25 6255 Phaasant Hill Road and that that's ].btlatad in ^W COtM'f 0F CbMf1N PLMAB : MONTGOMERY CQT7N'1'Y OFtIC! 3692 Closing Argtiunent - State Dayton, MpntgoraerX Courtty, Ohio. The other thing we have to show is that when he did tre,spass, there was another person present, and you know from the teat:lmQny oi: banie7, and we know from the testimony of Brooks that Martha Madewell was the3re, Daniel was there, Brooke and Billy Madeweil were thare, and Na,thd.n Marshall was there, and Jsgioa Young. Ail of thera were there. A].l nf them were asleep. You have to looX wbeti he trespassed while other people wore there, what was his purpose? Did ho have apurpose to commit 3.n that structure any oriminai offense? w$11„ you heard the testimony of what happened thers that night. You heard the test^mony that two people were killed that night and that a young girX was brutally irJured, and aukrsoq,tently died that nlght, all at the handa of Larry Gapen. it can be any offenae. You heasd testimony that the Defendant:eAdhd ap with Martha Madewell's pur#e in his car, and nobody gavd hint that purse. Danie7, testified that that purse was sitting on the aoffe+a table when he went to bed that night and his mother w*s still there. No one gave him the purse. xhat is a criminal offense also. So the State has dtet its butden based on the evidexr.ce that you've heard, that on that date, September 18, 2040 that the COURT bF COMMON P]'.EAt3 4 MC1R'.E'GCMN2Y CAUNTX, QIHIq 3693 Befeodant dtd, in fact, commit the crime of aggravated 2 burglary, that he did, in fact, use forCe and stealth 3 comin.g into a rasidence, and he was a trespasaer in 4 that occupied structure. 5 Now, when you talk about physical harsl to 6 y►eQpla, what are we talking about? Just any, any 7 injury, 111ness, or other physiological 9.mpairment $ regazdless of its gravity or its duration. And in this 9 case it's clear, the ultimate harat was done. Three zo people koqt their lives, Martha, 'Oathan and Jesica. So 11 there's no question that there was phy'sioal harm done 12 to another. r ^ . 18 When you look at the fact that he's using 14 stealth to sot 3n, you also have to look at the fact iS that he doesn't come to the front door at this time, at 28 this hour of the early morning hours. He doesn't ring '17 the boli. He just sneaks in, aitd he creeps downstairs, 18 and he never makes his^pxesence known, and just using 19 your common sanse, when someone comes in your house wh0 20 ts a guest of yours or who wants to sae you, they call 21 out. xf they see you, they make sure that you know 22 they're thare. But Larry Gapen didn't do that. He 23 told you tn his statement he didn't call out to him the 24 second time, but he did see them, and he deliberately 25 did not ma:ke.them aware of his presence. ^.... COiJgT OF COMMON PLEAS : MONTOaMTLRY coUHTY, fiHra 3694 Closing Argument - State x The third charge the Defendant is oharged with 2 is that of the rape of Martha Madewell. The State 3 chaf'ges that on or about September 18, 2000 in 4 Montgomery County, Ohio, that i.arry Gapen did dngage in 5 sexual conduct with another, that being Martha 6 Madewell, by Purposely compelling her to submit by 7 forCe or threat of force. Now, you heard the 8 testimony, when the police arrived, when Daniel found 9 his mothsr, she was down in the lower Zeve3.. She was 10 covered up With a table. She wao covered up with 11 blankets. This happened at 6255 Pheasant tiill Road in 12 Dayton, Ohio. Again that is Montgomery County, So you I ^-.. 13 have to look at did the Stato proVe beyond a reasonable 14 doubt that the Defendant flid, engago in sexual conduct 15 with Martha Madewel7.. 16 What is sexual cond.uct7 That meaas vaginal 17 a.zLtarcourse between a maze and Eemala, anal intercour$e 16 between persons regardleSa aE their seac. Tnd key here 19 is that there haa to be penetrat3on4 It doesn't matter 20 how slight lt is, but there has to be penetratidn into 21 anl+ part of the body cavity of the vagi.nal or aAal 22 cavity n# another person. In this case you didn't hear 23 testimony from anybody that they had actually observed 24 what the Defendant.did. You didn't hear testimony but 25 you did hoar Bronke talk to you about what she heard. ^.. COURT OF COMMON pT,RAS 4 bI(IF7'1`tlOMORY CoUNT'4, OFTI() 3695 Closing Argument - State She said that fiha woke up and she heard a bangirig. She said that when she woke up and heard this banging, she 1ook+ed out of har roam, axtd sha heard her mother crying, and she said she went baok in her room, and atxe said she vaited a while, She heaxd More bangirig. She said she looked out again, and she c+ou3,d still hear her raothar Gri*ing, and you know from the teotimmny of Danie3, and you kttow from the testimony of police officera at the scene that Martha Madewall was down in that lowar level across from where 8rooke's badroom was. 9o you talk about this sexual cvriduct. Hzooka dldtt't see the raga takitsg place. Brooke couldn't tell you that that's what was happenin:g, but you can look at other thinls that you do ha've, that We did present to you. You can Zrrok at the di##erent types 4f evidenuo, and there are two types of evideAce that the judge will tell you about. one type of arvideriae io the direct evidence, and that's testimony that yau hear from a witness as to what that witaess heard or saw, and also it's any ovidonsse that is presented by way o£ exhibits and any evidence that has been stipulated to by counsel. Thexe's alao circutastantial evidence, and that evidence is proof of fatsts or niroumstanCe s by diattct COURT OF COMMCIN PLIAS : MOkf'!'tiOMY CCIURTY', OHIO 3696 C],osinq Argument - State evidence fram which you ntay reasonably infer other related or aranPeCtsd gacxts which natura].iy and logically #ollow. in this pa.rticular case when you talk 4boUt whether sexual conduat,kxad occurred, what do you look at? Several th3.ngs. Xou look at the position c+# Martha's body when it wao found. When the tablt was taken off of her and when the blankets were removed i'xom her, how was 3►er body found7 You heard the testimony of the oft^cer who teBtii'1ed that her legs were spread open, and you saw the di,agram as to bow her logs were spread open. You heard the testimony of Detective Salyer, and wha't d3d he tell you? He said that the Defendant said that he had sax with Martha. Ho didn't say he had sex on Martha. #te didn't '8ay he had masturbated. He said, "I bad seac With Martha." That goes right'along with the positiori of her body. you also hava other evidenoe. You have evidenc0 that` thOx'e was sperm found on hex' P3tGlkaoh, Martha's stol&aCh. There was sperlp f01121d on her legs, but the otber evicZenoe that you have is the DxtA evidettce. Thexe was DNA evidextod that was found in the reatak swabs of Maxtha Madewel7.. Ti: you take all of that tpoetherr, all those circumstances together, you can have an inference. You weren't there. No one was there to actually see what occurred that niStht b®siOe C0U-RT Ur C4MMOAT PLSAS ; MONTGOMERY CQtlr1'SY, ONID 3897 Closing ArguMent - State D%'ook+, but the Dneiticfn of Martha's body, DNA on the 2 rectal Swmbs, the sperm located on her stom8ch and her 3 16gS and the Defendant's statement that, "I had sex 4 with her," you oaa use your common serise. What dld he 5 lAezen by that statement? "I had sex with her." 6 Npw, the statute says that he has to eriDage 1n 7 sexUal aonduct with another, Another is Martha B Madawall. we don't Irnow what role happened, when it 9 haPpeAed. We don't know at what poiint in time it it1 happened during the assault that was going on with 1^. MartYZa Madmwell. What we do know is that It Wtcs 12 continuous, continuous. Vhat Brooke heard twice, we 1... 13 know hor mother was alive for aperiod of time. We 14 know that the statute does not requ9.re^- either way it 15 does not specify whether the indi,vidUal be another 1.6 person, has to be a liv,ing persqn. It does not speaify 17 that, and the State dubmlts to you we do not have to ta prove whether she was liviog at that time or not 3.g because of the fact that when the assau2ts ti.ret 20 occurred pA Martha Madewell: she was living, and it's a 21 continuous course of aotion, ooatinuous course of 22 action by the befendant. And the fact that Martha 23 Nladeweil is Pwt able to tell you what took pleoe to 24 clay, Xc►u have to infer from the evidehce that you have 25 seen here in the courtrcfom, the DNA evidence, the Y...... COURT OF COMMON b'MS : Md1Q'Pt}L?T^I^',RY CQIJNTYr QHIQ 3698 CXosino Argument - 5tata r 3 posit$caning of the body, your aamaron sense. 2 tdow, someone would say, "Well, there' a no 3 sperm in the vagina or anything," hogsn't matter. The 4 fact that there's no sperm does not negate the fact 5 that there could be penetration, and Dr. Ha.rshbs.rger 6 told you the fact that thore 3,e no bruising or injury 7 to the vaginal cav3,ty or to the anal cavity doesn't 8 mean that there was no p61II0t]catton either. You have to 9 romembar that psnetratioa, no matter how slight it 9.s, 7.0 it's gu"tcient, it's suff:tatent, and the key in this 11 partioular case is the Datendazt's istat+earent, "I ha.d 12 Sea with Martha," and her body's position was in a L 13 position to inBi,aate that that is exactly what 14 happanad, that he bad s+sxus.l interoourse with hert 15 roctal intercourse, that this all happened on this day. 16 The other part of this is that we have to 17 prove beyond a reasonable dtlubt that the Detecfdant did a.$ this by gurpose].y cotqpellang Martha to auhmlt by Eoxae 19 or threat of toroq. And purpose, that's just a 20 decision of the mind to do an act with the conaciou8 21 objective of engaging in specific conduct. 7fau do 22 something purposely or you do it intentionally and not 23 by a.ccident. Now, iu this particuXar cxase, was it 24 purposeful by the Defendant? His statement would 25 7.ndi.oate that. COURT OP COMMON PLEAS : MQNTGtJMEYiY Cc7TJNTY, OHIO 3699 Clao1ng Argument - State Was there €aroe used? Weli, your common saneo will te7.J, you Martha Madewe7.1 would not have consented to this. CommOn sense tielis you MaYtha Madewoll was 4 belt:g assaulted with a maul at the ti,me tb.at this was ^ going on, and that that is sufficient force that 6 allowed him to make her submit, that allowed hlm to 7 commit the crime of rape. a We have already talked about Porce, any 9 vioianae, any compulsion, any effort or cpz:strait:x 10 exerted or used by any mnans uptsn or against any 11 pezsnn. In th3.G case assault, that the Defoodant 12 ef€ected agairist Martha Madesvel], with the maul is 1r 13 force; su€ticient force to be unable to resist, 14 sufEinieat €orce to enable him to commit these acts 15 agaillst har. 16 T1xe fourth count is that af aggravated 17 robbery. The State of Ohio ba.s charped tho Defendant 18 that on September 18, year 2000, in the Ctsuwxty of 19 Montgomery, State of Qhip, that the Defendant in 20 attemptiag or committing a theft offense or in, fleeing 21 immediately after the attempt or offense did inflict or 22 attempt to inflict serious physical harm on anothox. 23 Again, that charge is right here, aggrav4ted 24 robba^.°it. Again, You know from the testimony of all the 25 witnesses that #ha events occurred on September 19. COURT br COMMON PLEAS : MpNTO4MEItY CC)UNTY. OHIO 3700 Closing Argaarent - State year 2Opt3 in MontgoraarX dountv, oh5.o, at Maztlaa Madewel1's address, and that addxes$ Was 6255 Pheasant Hill Road, Montgamery County, Daytou, oUia. Nowr, gpu look at iA attempting or comm3.tt3,ng a thoft offense or fleeing immed.iataiy after the attempt or orfense, is that what happened in this case? Is that what the evidence ,shows? The evidence sbows that th+a Defendant ended up with Martha Madeweli's purse in hia car, and that was testified to by the particular officers who observed the car, I mean, who observed the purse in the car, and it was a].ab attested to by the f$et that the Defendant put It in his own statem®nt. Daniel told you whexe ths purse was located at the time he wen.t to bod, and Martha never left the residence so the purse did Aot leave by means of Ntartha. The purse was not tskeu out to the Defendant's car by Brooke beoause all shw carried was her booit bag, and she told you that on the stand. BillY didn'.t take the purse out to the car. Where was the purse located? It was loaated in the iront seat with the Defendant, in tho front seat with i,arrp Gapet► . He tells ybu the puzse was in the oax. How did it get there7 Ddniel didn't take it out there. Martha didn't take it put there. Brooka and Billy didn't tate it out CpUBx Qi+ CnMMpN P"AB : MaNTGbNERY CaUNmY, OHIO 3741 Closing Argumeret - State 1 there. The Defendant is the only one who could have 2 removed that purse, and not only that, bo had to 3 actually go ittto the middle level, the 1eve1 whtro the 4 doors axe, to go into that liv'lng room to remove it 5 from the Goffee table where Daniel told you i.t ws.s 6 kept. 7 When we talk about atteznpt is sshnn a person B purpasellr engages, purposely engages, in aonduct that 9 if sucoessful will result in a theft, and in this case, 10 the Uefsndant had to pick it up, had to remove it, had 11 to take it out to the car, and that would tonstitute an 12 attempt Qr theft itself. ^ 18 What does the offenae mean? It means xhgt the 14 Defendant with purpose to deprive the owner of property 15 or services knowingly obtai.aed or exerted control 4v6r 16 property of anotho3r without hia or her consent or any 17 person authoriaed to give aousent. d.8 In this case no ona had the consent of Martha 19 Madewell to take that purse or anyone else in that home 20 who had t#le authorl.ty to do that. Was she being 21 deprived? Well, deprived means to withhold the 22 property of ariothsx perYaansntly. Taking that purse, 23 she was defi.riite7.y deprived. Mafrtha would never have 24 that purse 4gain. We know Martha is the ownet of the ^ 25 property. All her identkfisxatiQ,tt was in the purse. COURT CF COMMON PLEAS : M{3NTC^MEAX COUNTY, OHIO 3702 CZt3sing Argument - State The Defendant said it was her purse in his statement, iLnd Daniel said her purse was on the coffee table. So you ask yourself: Aoes this have to be coftitted at that tx.meY Does the infliction of pain, of serious physical harm, physical h$rlll, to Martha, did it have to be done in order to effeotuate the agg. robbery? And ,it doea. What the statute requires ls that in attempting or committing the theft offense or in fleeing immediately after the attempt or offense, that serious physiaal harm had to be inPliated upon Martha, and in this particular case, the asaaUlt wit'h the maul vras sufficient at the time, the assault to Maxtha, the inJtttie& 4h+9 oustained, were sufficient serious h5.rm to ailow the Defmndattt to be able ta affectqate the charge of aBUXavatad robbery. The assau2.t ap her left her unable to do anything tq prgvextt anything frtsm happening. i't doo:gn't mean that it bad to take place right at the time. It could happen later on. The assault on Martha was sufficient. Thz1t was the serious phYsioal lar%. The faat that she was rendered immobilized was enough force that allowed the Defendant to take. the purse, that alloWed him to commit the crime of aggravated murder. tt doesn't matter vhi* the Defendant did It because snative doesn't matter at a1l. xt's juet the COURT OF C4MpN PbZAS : MtMmGUMERY CoUNTY, D$iTCf 3't03 Cloaing Argtiment - State elements that you bave bafore you today. This is part, the aggravated robbery is part of the continuous action of the Defendant in this case, the contintious aotioT ► of comiug in by stealth, by foras, committing the assault on Martha, committing the assault an Nathatt, committing the affiaault on Jas^oa. All of thls is one continuoua action, and as long as it ocGurs during the continuous a.ation, it is sufticiant in the State of Ohio. And we knoW the serious physical harmr we don't have tq go over that again because Martha prided up dying. Martha was killed that 'night as a result of the inJuries she sustained by the 17efendant. The State will submit to you that based upon the toatimohy that you have hexrd and the exhibits that you have $hown that the State has proven beyond a reasonable doubt that, in fact, on September i$, 2000 the DefeAdarit did, in faot, commit the arime of aggxap'at,ed robbery. . Now, we get into next the actual crimes of aggzavated murder that the Dgfandant is charqed with. And you will sae that the befendant is charged with aggravated murder,priar caloulatiori in three diPfexent instances for each victim, one for Nathan Marshall, one for Marthp Madsvell, and one #ot Jesiaa Young. Courit dix of the indictment states that thg COt3R7C QF Cob3MON PLEAS : MaNTGOMSI¢'7F CdUN7.''Y, t7tti0 3704 Closing Argument - State Ue,fwaxdant, Larry Jamhs GApan, on or about September 19, year 2000, in the State of Ohio, Montgomery countY, d,id purposely and while committing or attempting to comm9.t or fleeing i.mmediateiY after committing or attemptini; to oomait aggravated bttrg3.arg did cause the death of Nathan 14arshal],. I indirsated that we were talking about prior c.aloulation and design, but that count goes specif3.aally to what titeX call felony mtxrder. That while in the contaiission, t1Ae cammisgion of Certain types c►f crimes, if you do, in fa,ct, ki33 $n i.ndividuai, you can be chargad with aggravated murdex, and xn this particular case, the sixth,cdunt of the ittdictment deals with the aggravated mUrder of Nathan Marshall based on aggravated burglary. what I' ll do fs deal with the aquats somewhat together becausa when you loo1c at these particular counts, we'ra talking about individual situAtions.' You have threa victims and you have three different charges, agg:ravated burglary, sage, and aggx'avatdd robborg, and what the State of Ohio has phaycged tfto be#endant with is that while he was coawal.tting or attempti-Ag to aotamit or fleeing 3.taaxediateiy after committing any one of these of#enses, the aggravated burglary, rape, or the aggravated robbarY, that he did, in fact, cause tha detth of the COUIt'L' C1V COMMON PL$AS ; MqN'1i34k^'+1Z'Y Cp1flN'lYr dHXa 3705 Clooing Argument - State 1 indi,viduals, Martha Madewel]., Je$ica 'Xoung, and Nathan 2 PQarshal^.. 3 To start with T'].l begin with the aggravated 4 murd.er. on the aogravated burgiary as the underlying 5 offense. Bging that you have to look at is did 6 purposoly allow aamftitt9,nw or attempting to commit or 7 while t1qeing. When does it have to occur7 Purposely, 8 as I haeve alread,y told yoa, means that a person has to 4 act purposely when it's his specific intent to aause a 10 certain result. Now, is it his specific intent to 3.1 cause the deat8 oP.Martha 14adewell, JesicA Youngr, and 12 Nathan Marshall, the evidence says corraat. From his 40.. 13 statement alone, he told you that he-admittdd the 14 attacks wi.tb the maul, He adpnltted the attacks ott all 15 three incliv9.duaa.s. He admitted that in h.is statement. 16 The teatltaony that you heard, the faat that they died, 17 you heard that fsom Dr. ftrshbarger, You heaxd the 16 fact that axl thre8 individuals died as a result of 19 multiple chop wounds. NathAn died as a result of 20 multiple chop wounds to his head. Martha died as a 21 reauit of multtpis abop wounds and injuries to her head 22 or her skull was aatually fxacturad, and degica Young 23 dled with the result of multiple iajuriea to 'her keea.d 24 and to tser chest. 25 So You know that thO nefendant was auting ^...., COURT OF CqMMON PLEAS s MCTMMMUy COUNT3C. OIixO 3706 C1os3ng Argument - 6tate gurpoaea.Y but you have to look at does that mean when haM- when You talk about wbt3.e comna3.tti».g, does that meaa that ha had to do it in order to ef#ectuate the a.ggravat&d burglary, the aggravated robbery or the rape? 'Phat's not what it means. 'fwhl3e aommitting merely means that in tue course of conduat, it's a aerlea of assaults that are going on, and that the deaths had to ocvur at the timo of aots that vexe lsa,d9.ng up to, that were ooaurring during, or that were immadiately aftar the commission of any of the offenee, so it's kind of a complicated kind of thing to think about, but when you're uprnmitting a seri.es of violent assaults on an inciividualr it continues in this case. You have a burglasx that is oom,taittad to aame inside of the residence, and as you come i.nside the residence, then you Start PoMitting the aatUsl offenses. You start the actual assault. You start the actual taking the maul and beating Martha, striking Viertha, strlklng 7Nathastr striximg 4resi.ca. The killings do not have to ocour in order to commit aggravated burglary. The ki3.lings to not have to occur in order to oomm3.t the rape. The killings do not have to occur in order to aoramlt the aggravated robbery, but they have to be, the 25 deatMs, have to be directlX associated with the CoVk2T OP CplfD4i3N 1''LVAS : MO3JTGL]MERY CQUNTY, OHIO 3707 Closing Argument - St#t% 1 commission of those crimes. 2 ,Atxd What that means is that it can take place 3 before, during, or after, as long as there is an 4 association to it. It's one continuous occurrence, 5 it's not two, ziot three, but one continuing occurrdnce, 6 The aggr4Lvatod burglary, cciaing into the home of Martha. 7 Madewell, we have already taliked about the aggravated 8 burglary, how that was effective, how he used stealth, 9 how he ueed force, how the Dsfondant csame into the hame 10 whan ha was uninvited, how he came into the home for l^. the purpose af committing assaults, for the purpose of 12 committing crime against Maactha Madewell and her }.3 ^1w► family. 14 The evidence in this particuiar cas+s, you have 15 had the ev'idonce about aggravated burgla,ry. You have 16 evidence about the raPe. You have evidance about the iy aggravated robbex'Y, and you look at the xape. The rape i9 count itseif is only ccnrxerning Martha Madewall. She 19 waS the individual raped, but under the law, you could 20 still ohargt the Defendant with a raps aount, 21 aggra,vatsd murder, based upon him committing rape and 22 caRsing tho death qf Nathan Marshall and Jesicaa Young, 23 and whY oan you do that3 Because it is one continuous 24 occurrence of h3.sw-^ one continuous occurrence thdt 25 allowed him to do this. It doe8n't have to be that COURT OF COMMON PT,MS : tdJit NmC#DbINRY C(N`3NTY, dHxO 3708 Closing Argument - State they have tq be the ViCtim Of the actual rape. That'$ not what is reQUired. It had to occur while the klllings were taking plaae. A11 of these counts to the aggraVated murder we know took place on September 18, year 2000, in Montgomsry Oounty, Ohio at the Pheasant Hill addzess. We know that from the testimony of the witnesses. We ktow that from the testimony of ban.ie]., Nropke; we know that from the testimony of the oxficers, and you also know that from the testimony again of the DoienciAnt's statement. kTe admitted to the attacks. He admitted to ooia3.ng ever there. He admitted to actually takitg hor puxse+ putting it in the car. Aal of these are one aontinuous, one continuoua action. There are three ot]asr c+aunts, and those are the ones that deal with prior calculation and design. These ars the elements of a0gravated murder based upon prior calculation and design. Those wial be counts five, nifp.e, and thirteen of the indiotmen•k. Count five statds: That on or about September 18, 2000, in Montgomery County, State of Ohio, that the Ae£endant purposely and with prior calculation and dasigrc •qaused the death of another, that being Nathan Marshall. Again, when you look at purposely, a person acts isurpQsely when it is his specific intention to cause a COURT OF CoN1N1t1N PLSAS : MANTG0U8Y COUfNm'ff, OHIO 3709 ClOsing Argument - State 1 certain result. Did the Defendant, Larry Capen, have 2 In hls mind the intent to cAuse thO death of Nathan 3 Ma7tsh,^],17 4 Now the Court will instruct you about What 5 prior calculation and design moan. Among that, the Court will te11 you that the purpoae to cau$e death is 7 one of the main things. It mea»s that the purpose to B cause death ia reached by a deP9,r+ite process of 9 reasoning. 1ri advance of the hom3.cide, which process 10 of reasoning must hatro included a mental plan involving 1^. otudied abnsideratian of the inethod and the means or 12 the Instrument which death was aauaed by. There had Im. 13 to have been suffiai,eAt time and opportunity for the 14 planning of the act of homicide and the Gircumstenc,es 15 surrounding the homicide. There has to be a showing of 16. a schema designed to carry out tho calculated deoisiefq 17 to cause death. And it doesn't have to be any definite 18 time period In ordor to do this except undor to-- 19 there's xl5s 8articu3.ar amount of consideration that 20 would have to be given, but it has to be a definite. 21 An erample of thls would be when you're 22 dkiving along and you're following the rules of the 23 road and everFthiog, and all of a sudden you decida, 24 well, I nraed to make a left hand turn, snd You may be 25 in the rlg#rt hand lane. Well, in your mind You Cd1Y1t7C OF CQMMpN I't'BAS : MpKTGnMgRX_Cf717NTY-, OHIO 3710 Closing Argumsnt - StatQ 1 automatically devised a plau, a sqhe4e, of wllat you x need to dp. 7tau put your turn signal on, you tsh®ck ^ traffic, and at that point in time it it's okay, then ^ you move over to the left. That's a very short amcrant 5 of t^me so thmro's no s9etinite amr,uint of time as to 6 what it takes to plan a particular scheme. 7 Sut when you look at it in this particular B thing. what do you look at? What is evidence of the 9 . Defextdatat' s prior calraulation and desiSn? Well, in khis casa the evidence was preseutod to you. First of ^.i a11, when you first came to the hou.se on september. 7.7, 12 2000 around 7:30, according to his statemett, he told a,s you that ha looked dowtt, and that he walked tn 14 unannouhudd, that kta called out and nobody answered. 15 You heard DeteatiVa Salyer max that he said he looked 16 downstairs, and he saw Martha and this unknown man down 17 on the nouch. So what did he do? Did he stay there.? 1td Did he get upaet at that point in time? Did he reaat 10 at that ppi.nt in time? Did hb run to the kitchen and 20 grab a kn&fe or aaythirtg Iike that because he WaEti so 21 upo.etY No. Did he atrangle tham right at that time 22 when he first $aw them? No. Did he cause their death 23 by a blunt instrU'ment at that time when he saw them? 24 No. What did he do'7 He snuck back out the door. What did Ue do after that? lie ended up going COURT OF CpMMOAi BLVAS c MoNTG0MEkt7F COUNTY, OHIO 3711 Closing Argument - State to Cold 8eer and Chesse•burgers, and he ended up havS.ng a meeting with hls son, Jimmy, and he ended up meeting with his pon's g3.r1ErS.end, Ttacee, and they had dinner and they talked, and what ara the things he talked 5 about? Do you remember icacee Mi7,3.ar' a testimony? 6 She said that he told them that he thought Martha was 7 seeirso auother m.anbut what's more impartant? $ He said, "But I'ra okay with that," and she said he 4 seeraed happy when he le#t, and that was around about 10 nine, nin;a-thirty, and aacording to the Defendant's 11 statefttttr when he flrst went over there, it Was 7a30; 12 so you got approximately two hours right there. Did +.. 13 the Ae#etida.nt go baok at that time? No. The Defendant 14 does not go back to Martha Hadewell's housa until after 15 12:30 u.m. the next morxli..ng. 16 But arhat is iroportant that you have to look at 17 is the time sequence. X t t s over five hours that' s lg pasaed, and duriny.that time the Defendant calculates 19 what he wants to do. He's not aati,ng merely 20 automatioally when he sees Nathat Marshall the first 21 time. Ua goes away. Stilt not only does he go avray, he 22 thinks, and before he comes baak to the Pheasant Hill 23 Road apa3-tment, aondomirtiua► , wha.t does he do? He goea 24 to Oeer Bluff, his home thexe, and what doea be +do 25 there? He picks up a maul. No picks up gloves, and he COURT OF COMMON PT,ElIS : MC►NTGOMgItX CQUNTS", OHIO 3712 Closing Argument - $tate tells you that in his stutement, that he picked up the maul, a-nd he brought it with him, and he pi4ked up the gloves. And why the maul? Because in his mind he has decided that was the tool he was going to use to effectuate the killing, and in his mind and in his statement he told you why did he take the gloves. He took the gloves because of possible hand prints. Mental thought process going on, a mental thought process going on as to why he would need gloves. But that's not the only thlng that he did. His mind is still going through a thought process, deliberataly planriing thinge out. Re gets a change of clothes befor® he comes back. He has the maul, he has the gloves, and he has tba change of clbthes, and then over #ive hours later, ho comes back to the residence of Martha Madewell at 6255 Pheasant I3S],l Road, and he Comes bavkr he doesn't announce hiMself and this time what else does he do? Part of the plan: He takes his shoes aff because from earlier he already knows where Martha Madewell and Nathan Marshall are. Zarlier he already knew that they were in thN home. So he had thought this out. Iie had thought this out and he had planned what he wanted to do. COURT o8' CpMMClN BLZA$ ; MONTGOMERY CQUNTIf, AHAo 3713 Closing Argument - State The Court will also instruct you that you can look at the means that a peraon uses to effeatuate something, the particular weapon that the person uses to e#feotuate somathtng. What Is the weapon of choice in thta case? What is txco weapon IArry dapon chose to use? Was this a spuz of the moment thina4 No. It's not a spur of the momerzt thing. 7Chis took place aver five hours later. And his weapon of choice, tha maul that hei optained, thi$ maul right hore; his weapon oP ahoioe. Look at it. Yqu heard from the tostimorty of Dr. H'arahbarger of the injuries that it caused. Xt's not a gun, not a knife, the$e are 3njurtes that this I })ofendant, Larry Ciapen, took in his hands and chopped thaae Iadiv5.duals up. Chopped Martha Madewayll up In the faae, in the k:ea;d, chopped Nathan Marshall in tho face. Chopped Josica in the faaQ, in the head. That tells you somethiug. The method and the ma:ans he selected to do these brutal killinos took thought process. This maul waa: not in his car. It wasn't at the Pheasant Hi11 address. He had to thi,nk about this as being the t+oo1 he wanted to use. That is prior calatU.atlon, prior calou7,atalon. Xe thought about this. He wanted to inflict a Gertai«s type of injury. The Court w4.i1 toll you that the purpose-- MR. GRktER: We'll hava to objeot, Your CQ(1RT QP' COMMON P"AS t MoPJTGaMBItY CqilrlTlr oHXt? 377.4 Closing Argument - State Honor, as to what she's saying, TFIE CpUAT: Busta3.nad. MR. I30HSAN: 3tou can lqok at things and you can see that an act, the waya person aota, the manner in which he domstt't apt, can be used to deterntint what his purpose is. If you have a wound tk,at's infliated upon a person with a deedly weapon 10 a manner that's caloulated to destroY i.ite or inflict groat bodily harm, then tha purpose of that is to cause death can be inferred from the use ot ths.t weapon. In thie case purpose again is to act intetttinnall7t, not accidentallp. The Deian+9ant did not take that maul into that t►ouse and sl9,p and t'all and accidentallx hit those people. The Defendant daliberute3.lr put it 3.n his hand. The Defendant deliberately wa].ked.i.ntp that residence and crept down those steps. He deliberately ased th+a maul brutally against Nathan Marsha3.l and against Martha Madewell, but even More so, even more so, that goes with px'ioz calculation and design is that the Defendant did not stop there. He left the basement level, and he want up two flights nf steps, two fXightsr to g8t to the bedroom of Jesica Young. Now, that's not a,apur of the moment thing. That hafl to be thouqht out. That had to C^. COURT OF CQMMON P14VAS_ : MOttTMMPIY COUNTY, Wi.1Q 3715 Closing Argnmeat - State 1 be a prodess of reasona.ng and thinking, and he, in 2 fact, again utilized the ffiame topl to oaus+a death. 3 You say why is that prior calcula.tion and 4 design abont Jesica? He dassn't use it on Hrpoke, He 5 doesn't use it on Hilly, ssaauss he has made a 5 decision in his mind, a plan In his mind, who he wanted 7 to assault with that maul, whp he wanted to Xi11, and B that's exactly what he did. It was a weapon of choice. 9 It doesn't matter why because,motive doesn't ' 10 matter in this ca.se. Motive has nothing to do with ii this aaso. It doesn't matter. You say the Tiefendar,,t 12 never aated like this before. The thing that does 9.3 matter 3.S though on the 10t1k of September, year 2000, 14 these were his aots. These were his mental processes, i5 and that he deliberately and calmly went forth and 18 executed the plan that he had devised in his head. 17 Di.d txe deliberately plan, did ha 18 deliberately intend to` kil]. Nathan Marshall? tEYe 19 evidence that you heard wi1l te].l you that beyond a 20 reaaana.b].+s doubt he did. "i'o take a maul, a topl of 21 this naturm, and repeatedly striko an individual fn the 22 head wi.th it, repeatedly strike isim 3.A the #aae with 23 it, use your cmmon sense; does that mean he kntended 24 to cause the death of Nathan Maxeha7,1" The State 25 submits tp you that it does. To repoatedly take that ^. ; CqURx 0 COMMON PLZAS : MDpt'IGQMBft'Y COUNTX, t1HSq 3716 Closing Argument - State maul apd strike Martha Madewela. In the #acse, strike her 1n the headt that maul, does that mQan that he 9,ntended to cause tha dga.th of Martha Ma.dewall? 4 The evi,denCS is there. It is beyond a 5 reasonab^e doubt he used that roau], to effectuate death. 6 ge used the maul to go upstairs to 4eaia#'s roam tflth 7 the 3.tttent-» Was the irttent3,on accidental? tro. The S i.ntceat was actu.al to aause her death, to take the maul 9 and zepoatr2diy strike her over and over aga3n, to the 10 point wrhers she died two daYS later. il When you look at all the charges of aggrava,ted 12 murder, the prior calculation and des3gn., and the 7.3 charges based upon the commission of a felony, you'll 14 see beypxtd a reasonable doubt tb,at the State did, in Ix fact, prove oacb and every oxement of the crime. In 16 addition to that, the State ha ►s charged In each one Of 17 tb.use counts of aggravated murder five aggravating 18 circumstances speoifications. I went over that with 19 you in the opening when the State first talked to you 20 about thIo particular case, and they told you that with 21 oach tnurdor, the State had, in faat, charged five 22 aggravated ciroumatpnces sPea3.f3cRtioms, And what are 23 tht38a? 24 Basically at the time that the Defendant ,23 cowmitted the aggrava.toc) aturdersr the Dafendant COURT flF Ct7MMRN PTZA9 : MONTGdMFAX_Cti[3NTY, OHIO 3717 C1osA,nO Argumsat - state oommitted while he had broken dstention, that is osie. That there was a purposeful killing of two or mare pax4ons. That's the second aggravating ciraumstanoe. Three, that he's the pxinoipie o#ftnder of the aggravateo murders wh3,1e committ9.ng the aggravated burglary, and, as you know, from all tho evi.detoe that was presonted, thoonlY Defendant in this case is the De1endattt, Larry aapeti, and that he Was the prinoiple offender io the 4g$ravated murder based upon the rape and that he was principie offender in the aggravatod murder with the underlying felony of aggravated ^.. robbery. Tho8e are the agpravating circamstances specifications. The state has already gone through ttie svidonce thst was presented to you about the 11e#endau.tt being tln detention while he's at large, while lae's on electron,io home detentlon.. That has been shown beyond a reasonable doubt. You know from the facts from aJ.l the evidence that the victims .tn this aase, there wero thxee: Martha Ma<#ewe3.L Hathan Marshal2, and Jesxca Young, so the aggravating aircumstanCses where there have to be two or more persons involved, that has been clearly established beyond a reasonable doUbt. And as I have already told ydu in the other C(iIIRT CtV COMMON PLEAS : MGNTGOMJORY COUATY, oIITO 3718 Closing Argument - state 3 three, the Defendaant is the only of#endex and, 2 therefore, he is the principle offender in ea.ch of the 3 aggravated murder ahaxgos, and that they were all 4 comraitted, that the aggravated murdex's• wera committed 5 whlle the Defendant was in the process of aommftti,ng, 6 sttempt9.ng to aomta9.t, or fleei.xeg immediato].y after 7 committing or atxemptl.rig to commit aggravated buxglary, a aggravatvd robbery, xnd rape. 9 I sUbmit to you that when you look at a13. tho 20 evidence in the case that was presented to you, when 21 you look at s3.l the testimony that you heard, that you s•.. 12 will fl`li'dtthat the State did exactly what it told you ,... 13 it would do in it's opening statements, that the State 14 prtived to you beyond a reasonable doubt that the i8 Aefendartt, Larry Gapen, colA7fditL$d each and eve;ry one of 16 these artmas and the aggravating circumsta,ncea 17 specifications beyond a reasbidable doubt. And that on xe that night, September 16, year 2000, the Stata has 19 proved to you that.the Defendan.t esexciaed ultimate 20 control over the lives of Martha Madewe17., Na,thatt 21 Marshall and Jesia4 Ynungr that he exeraioad total 22 control by brutally taking their lives and by brutally 23 affeating the lives of all the peop3.e that they love. 24 We submit to you that the Otatm has met its 25 burden and we ask you to do your duty and find hi.m COtJYtT OF COMMON P'bNAB : MONTGOMERY COt7NTY, OHIO 3719 Closing Argument - Defens+a guilty of all charges a,rid specikications, Thank You. TH£ Coi7'RT: Mr. Greer? M. GiLSER: Thank you, Your HoAor. CLDSxNG ARGUMENT BY MR. GRJ3E12: Well, ladies and gentleaen, this case has brought tnto your lives a sad and terrible set of facts, and there's nothing that I can say or that Bobby Ja® can aaY or that anybody e3.se can say that wi.1i make those facts anythirig less tha.u terrible, and there's nothing that Miss Hobson or Miss Aa.llarsl Qr Mr. Daidona or anybody else carr say that will make those facts anything other than sad. So let's put that aside and get down and roll up our sleeves on the gob that you have sworn to do as jurors, and that leaves aside the terrible nature of the iact8 and also leaves aside the saQ nature of It, but it's what you went through that andleaS lob intorv3.ew for and what you have ha8 to sit here far a1l this time listening to this ev#denae about. Wa told you at the outset that there's no question about Larry killed these three people. There's no question about the fact that there is a dispute iA this case. And that dispute is the dispute that you have to reso].ve. and let's go right to the CaUItT OF COMMQN PLEAS o MONTGOMERY COUNTY, OHIO 3720 Closing Argument - Defense core of that di$pute. The issuq really is whether the State or w'hether the avidenoe that you have heard has eatablishad beyoad a reasonable doubt the three acts of murder should be turned into 12 alaims of aggravated muxder. Tnat's what thls vase is about. So, you have to think about, firgt, the tools that you have to use to get to that core questiort. At3d this ccase, really dasp7,ts the nnp3.easant aspaots of this case, 3.t's aitt►ost a textbook exgmple of the bright line that separatea proof beyond a rea.souaia7.e doubt, the higbest proof our law demands, that separates proof beyonc3' a reasonable doubt from proof that doeSn' t e tta.la that leval, from proof that falls under the maybe yesr maybe no, could rie, might ber nat sure. Proof that is suggestive or has innuandcs to 3.t or in# erenoQ to it, aAd the issue s.s whether the proof that you hear - can be construed conuistently wlth innocence of these aggravated murder ohargas that are brought against you, and you' 1}. put it aside after you have studied it 8t1l bepauSe if yOti haVe d4ubtG, reasonable doubts, that means they haven't crossed that bright line. xP you don't have doubts, that means that they have. Arld %Y jab, like youra, is to try to anmxyze ttLe evidenae that you heaxd againat that ffitandardt And let's go right to the aggravated murder CDUIiT Or COMMON PLI7AS s Ml3N'TQqMXRY CqUNty o-t3Htp 3721 Closing Ax'9ument - Defense claims. That's what this case is all about. The first issue, and we have already talked about it yray back at tho beginning of this oase, is the first count of aggravated murdez eharged as to each af the thrae Individuais here is a o7.aim of aggravated, what they call premeditated murder, vhich is a ptirposeful klaliag dome with prior calculation and design. Now; you're going to be buried- You've already be8n buried In words, I''ou're going to be laur3.ed in moxe words as the day goes on. Words are imp4rtar►t. They're what we use to aommuniaate with you. The ulti,mate w4rds of importance are going to be those that Court teXla you as tca the law. We're not Sn that position nor Is the proseCutor. We'xe here simply to anaXyze the evidence with you and to discuss principles. it's important to .foCus on words and their moanittg, pot juet b^,+and a reasona.bxe doubt, but let'a look at the issue here of prameditated murder being a purposeful, icil3,7,no by prior ealauiat3.on and des3.ga, and let's think of our bright iine up there of whexo xeasonaiale doubt lied. Were these three killings phrpry8eful killings? T think the aAsWex' ia yes. They're certainly not aooidental to bit people that m4ny times with an Instrument of this type so thsy vrere CoUAT f?8 Ct^Mi`Md1N k'LVAS : MqNTtdoMBYtY +COUNTY, C1Ti20 3722 C1osing Argument - Tiefenss purposeful ki].li7ags, and I thirik that means necessarily that I'm not going to walk Mr. Gapen out of thla courtroom, that 3ie is guilty of purposeful killings of these three people, Thi.s is not an accident, but that's tho crime of murder. Ighat's a diffarent crime f'rom aggravated murdex. Aggxavsted murder re+iuiraa soesethinst more, something more than a purpasefa.l ki?.11n$, sa evan if you feol that tae are over the bright 3.it ►e, it's clear that these were three puxposeful kixlings and that Larry should be aonv"9.cted of murder for each of those ar5.mes and take whatevex the laW requires. The real question is whether they can elevate that to a claim that there was prior calculation and design, and a:s you ltnow, the issue thdt we have framed for you on that is it's our contention that what the facts show 9.s an pmotiori#i esplosion. This is out1$ndi,sh, thts Otrange behavior. This is »otiprior calculation ahd design. This is a alan who flipped out, et nice man who €or some reason srt#ppod. You unscrew th+s i3.d. 4f the peanut butter 1ax and the springs fly out, and we have all been under stress and proasure and tur►noi3., and we knoar those things happen in li£e, and that's not prior oalaulatiott and design. There are a].ot of terms for it. That's flipping out or reaching the breaking point COURT OF CitMMDAT PLIAS c MpX't'GONlE1tY COUNTY, piilp 3723 Closing Argutaent - Defenae atd then punning amuck, and I think that's what happened here. What is prior calculation and design? Let's thirik about those words before we start talking about what you have heard and the evide.nce here and the circumstances of arhat happened and the akrcumstanoes that lead up to what happeried. Prior means before, doesn't It? That weans before ^nstaad of after, not what Is dpne aftor, not the blanket over the Oody or going upstairs and.gotting a ohange of clothes or whatever. It's prior, means before. Caiculat:ton is an intellectual process, oa7.oul.ata numbers. You calculate your p1an, and it's pxior calculation, and so it's before, and it's calculation, and it's and, in aaddit#.on to that. It's designr the design of my tie, the deaign of anything ®1ae. 'A rational clear cut pattern. You'll hear words In this conneation, and the Prosecutor has already` used them, a definite px'oa0ss of reasoning. mhat's the best thlng ore do as people Is 4L definite process of xeasoning. And it's got to be in advance of the homicides. A. mental Pl.arx: something in ymr head, not youz guts or whatever makes us blow up emntior7aiip, a mental plan. Studied oonsiderati,on. The matsk i.n his co3,1, studied consideration, Cazau3,ating deais3.on. All right. COURT OF CC1MMON PLI:AS 4 MpNTrUM$RY COUNTY, OIiIQ C1osing Argument - Defense Now, we have got a,purposefUi kililng. Three persons were killed. Do we harrq those elemeots, prior calculation and design? No, we've got-- 7'he evidenGe we have of what happened here is unbelf,evable, it's irration4l. It's b3,rarre. It'a an explosi.on. It's adrenalin like you wouldn't believe. This huge weapon herEao forty some ttme$ th@$SB people wG'Xe struck. It's beyond Xa#it7nal planning, and there's an ejaoulation at some po}.n.t here of somen. This isn't prior calculation and design. This is a total emotional explosion. It this is a plan as it's boan said, I guess this is the way you'd have to describs the plan. WeJ.2, let's see, I'm am all night trucker. xown a gun, but I don't think x'll use a gun to kill these people. I' ].1 lraaye that wherever it is, axtd I'm going to chop up three poqpie with a maul. xhat sour►ds iilca a good plan. I think I'll do it in a housA full of peop}.e. That would be a good time to do it. And, usn, then, let me sea, what alse would be part of a really good plan h!&1re. I Xn4w what. I' lZ 8j8.Cttlate selRori on to the stomach and leg of one of the v3rstim.s. That soundg like a great plan. And I'll not only do this to my ex- w1£e whoA¢ I l+7ver but Z'kl a1stT do it to Somo man that I have never aeen before and I'll do it to a thirtosri year old kid. That sounds like a good pian, atd I'l1 Gtt)iJRT OP C13MN PLLA.$ :[dp1+FTf3pMSRY CpUN'PY, OH10 8725 Closing Argument - Slefense do the o0es in the basement right next to where my little stegdaughter is sloepS.ng. That sounds like a good plan, and then the one upstairs, I'll do next to where my little stepson is sleepinig and naxt to where my big stepson .1s s7.ee'pitlg, and then I'11 bave a little chat w9.t4 my big stepson in the hall and leave h,lm there as a witnestt to all this, and I thihk, maybe I could hide the bodies. I could put blankets over them. Nobody w#.Xl ev+sr find that, axid then 3ust to mako sure that there's not a trace of anything la#t behtnd. I'll leave the maul on one f].oor, ong glove on the other floor and ar►other glove on another floor. That sotrnds.;:. like a good pXai► , and then I'll take two of the kids that are in the house out of the house with me. That sounds like a pretty good plan. Oh, I'll take Martha'a.puxse along just,for good measure with all her identiticAtion and everythinp in it, and then I'll drive around all niglzt: I don't what want to give myself up to the poliae boosuse I don't wan% to have the kids upset. i' l1 have one of them take a baok bag with her so I can take thon to school the next morning and x'll wait until then to give raysplf up, too. That sounds like a good plan. Apd then i' ll confess the whole tha.ng as soon as I'm pltskqd up. That's not a 25 plan, and what happened here was an explosion of COURT fft COMMON 'pLI3A8 : MC)NxOOtdBkeY COUNTY, OHIO 3726 Closing ArgUMent - Defense emotion, not prior calculation and de#ign, not studied consideration, not a definite prodass of regsoning. What hapgened here Was murder. It was wurdar, and Larry's go^ng to have to answer for that, but wbat happened h+are was not aggravated murder with prior oalculatlon and design. That's not what the evidence shows, ugly though that evidence may be; in fact, the very ugliness of tha evidence refutes ths claim of aggravated murder. Have they shown agdravated murder by prior ca].aulatioxe and design above that bright line, beyond a reasonable doubt? Are we ax best, maybe yea, maybe no, could be, couldn't be, don't Xnow7 That's your job as jurors. And it's not just the circumstances of the orimes themselves. It's the oiroumstances iaading up to those cri.mes that are important. You know+ I have been trying all kinds oi' casas for a long t,irae., X'm getting kind of o1d, may not be as good at it hs I once was, but I have always given a name to a case when I have tried it, no matter what kind of a case it was. because I had an old grandmother Wkio used to read all those 29 cent novels about "The Case of the Lucky Legs" or "The Case of the Fan riaixcer's Horse," all those old ntyatery books that you used to be able to gat for aquaster apiece, and so CQT7R't Of COMMON PLEAS t Mi]NTCxQNSR1t CiTUl1TY, OHIO 3727 Closing Argument - Defense 2$lve aAame tQ each case, and the name of this case is "The Three Triangle Murder Case," and what a gopfy xeame that ia, but think about it for a minute because I think it illustrates kind of why this is a murder case and not au aggravated murder case. Remember Dstective Dui7aky pnthe witness stand? He told us that the way be works on a case is he uqes a tri,ang].e.. At one point in the triangle you have got the viot3sn, at another you have got tho suspent, and another you have oat the scene, and the way ydU iAvostigate a murder case is to connect the dots. The suspect at the saene and the v9.ctim together and you have establ5.shvd what happened. Well, that's true, but tYsis case really isn't a what happened case. This is more than that. This is a why happened. was it prior caYoulatian and desip, or was 9.t an emotional egglosinn? That's not a what question so much as it's a why queation. Why d£d this happen? So you think of anothor kind of triangle, the one we've all heard abaut, the romantic triangle, the man, the woman, and the other man or the other womanr and that triangle really Isn't the triangle in thia case either. Nobody kntw this taathari Marshall. The testimony was that.LarrY had never sean hiln before that night. The t®atinaany was that Daniel, who was in the COURT 03.=' COMMON PLEAS i A4GNT6OMERY CO11NTY. 0H10 3'y29 C3.osiag Argument - riofeuse house and talked to blm that night, had never seen him before that night. Drraoke even testified she'd never seen him befqre that migbt, The only evidence we had that anyb4dy ever saw him before that night is the Marlboxo pack and the note on the Mari,boros from the cat to Martha to meet her at some p1aoe. The third triangle. What really happoned here or is the evideaae coos3,stent with the fezllowing, because I think th3s is what happened, and we've got thm evidence of what happened back on J'one 24. 1.arxy was a guy who had married a woman fifteen pearn younger than he was, brought her and her four children by three d3.F#erent husbands into his househc5ld and tried to take care of them. We know he ran himse7.f into debt. The Pre-triaa. Services people say by the time of June 24 of 20Do, he had listed assets of thirty tteoUsand dollars and debts of three hundred and figty thousand dpllars, house on Deer Bluff. A12 these cars you have heard ab CCtfBT Or COMMON ELEAS t MONTGOMERY CAUN'1tY, C}Ftxa 3729 Closing Argument - Defense It Martha's gone, Billy ia out of his life tpq, so the 2 split-up is a disaster. 3 on June 24, what we have heard was that he 4 went into the house on Deer Bluff, Martha was as3.eep, 5 aruR he tied her up sc he could talk to her and tried to 6 talk her, yau know, you can h#ar what the conversation 7 would be, "Martha, I love you. We have got to stay 8 together. We have got the kids, we have got al], these 9 things that are important•in my life, in your li;fe and 10 their l.iv,es." A strange pheriomenon, but a heart 11 breakl.ng phenomenan aa we11, and Y submit to you that 12 the evidence is perfectly consistent with the same kind ^... 13 of motivation at 12:30 in thomox'ning on the night of 14 these sad events that bring us a.ll together. 15 #Ip had seen Martha at 7:30. Brooke has gone 16 to church apparently. The rest of the people must have 17 been therii because Szopke said she went to church with 18 some other little girlfriend o# hers with the van at 19 six o'clock or so that evening, and at 7:30 Larry comes 20 over, aomes through the baclt door as ha always does, 21 hollers p1xt, "I'm here," and, whovps, he sees in 22 addition to the iEam"y members that are there, there's 23 a stranoo man there, and he backs off, and he leaves. 24 And so the evidence is perfectly consistent from the 25 June 24 thing that he walts until the gentleman ca3.J.gx GDURT OF COMMON PLSAB : MONMi'3ERY CQttNTY, 0010 3730 Closing Argumerit - Defense will be gone, with the thought that he then aan 0000 over and talk to Martha, and ntaybe he planned to talk to Martha bnfore that Suoday because every other night of the wo9k he's either driving or busy with the kids and their tootbal.l praotice, 8i1ly's team, and all of thmt, so Sun.day night would be a night that he could try to get over and talk to Martha and see if he couxdn't patah thinge back up atcd bxing them together. He'd given her everything she wanted. HU even gave heic the dissolutiah. This was not a divprce. It was a dissolutloo. Martha wanted i.t; she could have it. That brings us to the thlrd triangle in this oase, whloh is not a triangle af what happened at the murder scene, not a lover's triangle, but a ttiang],e in time of tft+s events that were pos3.tiva and negative events that lead up to what happened a little after 1200 a.m. io the basement of that house, Do you renrember when Larry gave his statemeAt to DatectIve Salyer, what he said? He tald him about going over there earlier. He told him about Cotaing back at 12t34. Told him he always took his shoes off in the house and his shoes off all over the place in this house and indeed back on June 24, ths testimony was b.als.shoes were ot# at that time, vtaUed out of the.hbuae with hi.s shoes In his hand, they said. Dut he cc>mes in to CC1u8T 4r Ct1MMog i'aA,S ; Mt1NTGpMSRY CQONTX, QFTIU 3731 Closing Argument - Defense 1 talk to Martha. He goes dowin in the basement, e►T+d whut 2 does he find? The gentleman caller is mti2i there. 3 There's some beer aans and clgarette butts around. The 4 gentleman caller and Martha are .noa either 4aleep or 5 passed out on the couch together and the gdntlatAan 6 aaliex'' a$ants are mtssitg. We know that they were 7 tpia6ing baRauS6 thero's no blood on the pants deap3te 8 the gory thitigs that are going to happen and unPold 9 shortly after this woment, and do you remember when 10 Deteative 3alyer described Larry telling him what 11 ha.ppened that nig2it, he said at that point Larry ta31ts, 12 and the next words that Laxxy said w0re, "That's when ^ 13 It happaned.' A,ight at that moment, the explosion 14 ocourred. Gvtng over there- 15 And ].oois at the rest of the avideuae leading 16 up to this event. We don't know how far back in time 17 thi.a triangle goes that po3,nts to thgt very moment that 18 that's w'h#n it happened, but we know there was a 19 pasitiVe aide, and there was a negative side. 'His 20 friend, the Deputy Chief o# the Huber geight's Polioa, 21 said that he and Martha were going back and forth in a 22 stormy relatinnship ai1 throu+,M this summer, and we 23 know that on the negative $lde, after Aatttel left neez 24 Alluff, lirom7t and Larry had to 2oave Deer Bluff back in -^ 25 Hovowberi of '99. We know that there was this odd L. CQUItT dP' CQIdMQN PLEAS : MdNT inoident .on June 24, when Larry tied up Martha so he aould talk to her. And we know that Larrp was ax'reisted at that time, atxarged wi.th abductiorl, that he came o'ut, that he was released on June 30th, came home, and they put the monitoring daviCe on him on ,7UIy 8, aad almost Smmed9.ately afterw4,td, the one who made the Charges aoainst him is back over with him, that they rsconciled right after July 3. NJaxxtha is.coming over and talking to him. He's going over there. They're golng out for dinner together. They'xe doing who knows what, but they're spending all this time togethex'. They're back and forth oxi the phone all the time together. They`ts off to the State fair with the 1lttle kids on August 19. They're 2^ack and forth to both Places. i•arry n ►oves the stuff out of Deer.Bluff over to Phessant Hill when she mvvoS ts+ the condo Sr► August, sePtember 5, thei+ got a cookout. Sverybody who was there says they look like the happIast couple on earth. tverything vas sweetness and light; ooneth+aless, It goes on to the dissolution. What MartPia wants, Martha gets. She gets the diasolution on September 9, and then we gat Into this sequeAoe of witslesses who build us up to that, "That's when it happened" moment, wAen the expinsion ocourred, and what'they say is very important. COURT t7V COMMON PLEAS 3 MONTGOMERY CAUNTY, OHIO 3733 Closing Argument - Defense 1 Heather Morgan has a kid on Billy's football 2 team, T,ar;ty's the oo.ach. Larry had been the coach for 3 hQr older bog) Michael, and Jessica. They looked up to 4 him. He was a great guy. He was a aro7.e raodel for the ►n 5 and for all the other kids that he ever ocaahed in his 6 career. .Hiiuhael, once after the football game Saturday 7 morning OaYs, "Caza We go out-- Ca:a we take Larry out e to lunch with us? .They deotde to go to dinner so their 9 go to dinper together, and he's i,n a good maod, and he zo has A good time with the kids. The kids have a ai wori.dexful eveniny. They gst to play pool. They get to zz go see the antique cars in Springfield. They get to ^ 13 dx4ve 3,n a Corvr.ette, zt's a pieasant • mvaning for the 14 kids. 15 At some go3.nt during dinner Michael aotioe6 16 that Larry i.s atill wearing his wedding ring, and what 17 doe6 be tell Heather, the mother of these two b*ys7 He 18 tells her, yes, he's hoping to get ba,zk together with 19 Martha. i3e thinks he can patch tt up, an.d brIng them zo back together aga5.n, and the next da^,r on 5unday, be's 21 at home with Chairitye and what does he* teil Charity? 22 The same thing, that he's go.ing to get back together 23 again with Martba. He's ijoing to try to patch thingm 24 up, and then 7:30,he gaea ov+ar to the house, and he [,. 25 sees at the house, there's a 9ebt].eman caller thsre, CotRT OF COMMON PLEAS :MC1N'R{`rqMRRlf tCOpN'PY. QiiICf 3734 Closing Argument - Aefense and he backs out and he leaves. He then has dinner with Jimmy add Kacee, and he's in a good mood. They ,have a good time. He tel]-s xacee and she teattfied to t.h3s: That VArtha has a boyfriend, but he's okay with that. He's not in a rage. He doesh't flip out at that point. i3e tells the kids that he underatita:nds Martha hae a bc►yfrierid, he's okay with that. What hagperis next? The evidez►oe 3s complately consistent With wbat bappens next, being that he decides to wait until the boyfriend is gone, then go over and have the conversation with Martha to try to patoh 4t up. Only what happens is not what he expected, and the explosion Oc4"'LLZ'S. 2 submit to ytlu that that's a fair way of construix$g the evidenae that yau riava 11eard in this case. Aod that construction of the evidence sxmplX doas not ost.ablish aggxavated murder by beyond a reamohaba.e doubt. No :aatter hou ugly and terxible and shdckir►g the events that ooGurred for her. Now the State arguas, oh, no, no, no, no, he must have bought the mau3, to the housa that nightr and they''re roZying on the police statement. Thqy ask him was the maul at the house, and he $aid, "No, x brought it tr, the house." y7all, communication is communication, whether CDf)TtT Ok' CQMMOH PLUS : MONTGOMERY CWJNTy, OHIO 3735 Closina Argument - Defense 1 it's little 8rooke or big Aetecti,vs Saiysr. There were 2 no fAlir,awup questions and, in fact, i,arry had brougbt a 3 3.ot of stuff to tk►e house from Aeer BlUff bac]C in 4 August when that move was ttade. He wna the guy that 5 brought the stuff over to the house, and we have got b $videncQ that the gloves were always with the maul, and 7 the eaperx decides to test the lining inside the glove# S to see if there's any DNA to indicate whoso hand was 9 i.nsido tha qlove, an.d that human aweat and friction on ^.Q tYie palm from holding a heavy o3aject like this can 1^. cause a rubbing arxd can cause AMA to bo deposited 12 inside the giov-e. Whose DNA do we find inside the ^ 13 lining of the right glove? it.'s Martha Ma.dswtl1's. 14 Did she u$o this thing over at the house? Whera waa 7.8 it? We don't know. But there's reasonablo doubt 18 there. The 8roseautqr wants to argue that Larry must 17 have planned-this because hm brought clothes over with 3.8 h.iza •to have a cktarig+a of clothes after he cxeated mayhoin 19 in the house. 20 'VJhere's the avidenoe of that? The evidence 21 from Brooke is that he got the clothes in the house. 22 Tisdlember, she and Sil.ly were in the carr and Larry went 23 back into the house. This is the house at Pheasant 24 Hill, and vame baok with some clothes over his arm, and _ 25 it you 3.ook at the photographs of the master bedroom, COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIG 3736 Closing Argument - Defense there are what aPPear to be :aen's clothes hanging on the back of the door and on the end of the bed. is that where he Rot tho clothes? Tb;en thore was this nnysterious thizig-- of course, Srooke is asleep and awrxke and that sort of thins. Sho dodsn't remember that she walked up to Dear BluEf at 7.30 in the morning. The PSI saw her walk up with her little school bag, but then nobody remembers everythiag pexfeatly. She does remember going to where Ji.mmx's truok was at the parking lot, and that sounded strange at the timo until we ].ater igarx► that the truck had bad brakes and was simply there, and there it sounded like, gee, maybo the c3.otheR with blood stains on them got ieft at the truck or did he get something out af the truck, or what hapPoned wlth the truoX and then we discovered, that whatevrar was in that truakt the people who know 'what 9,t is are the police beoause they impounded it an4 took it dowritoorn. So that 411 goes up in Smoke. The other axSwnent that the State seem$ tO be making on this is that Larry oovered the bodies. That's rcat prior calculation. That's aPterwardd and, obviously, the reason he put the blankets on the bodies was to try to shield it fxvnn the little kids that he toaok with him, try to shield them irom what happened COCJRT oF CoNINION BLEAS : ASOrif'PdOMRRY COUNTY, OHlo 3737 C7:oging Argument - Defense thtrm. And the $tate says his voice saunded calm aft®rwardn. The adrenalin rush, the cra,ainesa, the irrational stuff that had happened hmd blown o;Ef by then, and I expacit he was 04lm. His conrsern was then for these two little kids, to try to gst them away fram that scene, to try to get them away frcrm that trauma and out of the hcuso with the thought, I guess, the thought of taking them to school the negt day and worry about tuXn,ing himself in. and that sort 4of stuff so that's not prior calaulat9.On and design. No blood-in the car sv agAin he's trying to protect the little kids from any sight of anything. W$ knov he weot straight fttrm the scene apparently home to 8rusman becausm the monitor strip shows us that he was back at Orusman at 205 in the morning, and Jimmy saw him there g0ing into the closet and aouldn't tell if txo's putting clothes in or taklnq alothes aut, but the policm weare there and searohed the, plaae ttLe next morning so what's a11, this about? so I thixtk the evidence is- TPtey haven't hit that bright }.ine. mhey havetl't hit that bright line. 'Shls man should be convicted for what he did. He shouldn't be convicted far somOthing he's beeY► averahe,rgpd vrith, and we have got this tremendous multiplioati,ost of aSrgravated murdex aounts that all COURT OF COMMON 1?'L.NAS : MG1N't'GODi$RY CC1qNx'Tt, QFTIU 3738 Closing Argwaent - Aefense 1 spin out of the same acts, whioh are simPly acts of 2 murder. 3 Xf you don't like prior calculation and 4 design, the next shot is try a purpoaeful killing in ^ the course of a burglary. Well, they told you the 6 elemsnts of that wrhich, as the State has indicated, ^ talk about trespass, Treaphss. T'respass is knowi.ngly 8 entering the prem7,ses of another without gr3.vilege, 9 knowing].y epteringr the promises of a.nother without to privilege. NoW, Le.rry was coming and going all the 11 tiqAe. Daniel testi,fied that the door was a.l.ways left 12 unlookwd in the back because everybody in the house waa 18 goi.xzg bacX and forth all the timo. Larry came arid 14 went. Tbat,'s 9ust the way it was. In fa,Gt, it appears 15 that Larry had olothos at that house; doesn' t it8 16 That's what Brooke's testimony indiaates,j 4nd that's 17 what is suggested by the photographs up there of the 1a master bedroom, atnd Lletective Duitgky f 3.na13.'y figured 19 out that any myetery due to my poor eye eight about 20 whose piature that is right at tho head of Martha's 21 bed. That'# a picture of Larry Gapen right by the head 22 of the master bedroom at Phoasant Hill. 23 The otber thing that's interesting on this 24 issue of Larry's privilege to go there at any time is 25 the other testimony of Daniel. Remember, hariiel wakeffi CoUYtx UF COMMON PbEAS : MfJNTWbSERY Go'gN'1'St'. oHEo 3759 Closing Argument - Defense up at 1:51 and knows exactly whan it is because he's looking right straight at the digital clock that's by his bed. xt's not 1:50. It's not 1:52. It's 1:51, and he walks out in the ha11 and who does he see in the hall at 1,51 a.m. in the morning, his steptather, Larry QaPen7 Ia he surprised to see hi,m there? No, he's not surprised to wee him there. That's whexo he was. Daniel saya his understanding was that Larry really wasn't living there on a regu7.ar basiS at pheasant HiIl, but he was living with Martha at Deer Run right up until the time Martha mqved to Pheasant ktS.i.l or 1Doer i Rlu#£, but he certainly wasn't surprised to see him 6w there because Lairry came and went. So, this wasn't a trespass with purpose to commit In the stsucture any cri:ainal offense. So that alternative, I think, doesn't get you pnst the bright line. There axe doubts. yQ+x may not be convinced of the a7.ternatiVe exp3.anat^ons for conduext, but they raise doubts. They have to raise doubts i.n any rational human m5.nd. We haven't bit the bright line. Oh, they sayr okay, if we k:avett't established anythi:ag more than murdez on the first and seoond counts, let's try aaather count. Let's try a rape count. Aggxavated murder aommittxd in connection with a rape, what's the evidence on that? The ev#.dence is COURT OF COMMON PLBAS : MC1NT60MRRY COUNTY, OHIGl 3740 Closing Argumea:t - Defense that ther® oras an aiaculatioa of semen. No question about that and that`s part of the bixsrre behgvioX that, T think, refutes any prior calculation and design. AYv question about it. Did he ambraog his dea.d wi#e, who one of those blows, we know from the Cortsrier, killed her instantaneousig, and in the rush of adranalin did he have an eJaaua.afia.ott3 Wel.l, it sounds like that's probablY so, but did he have-- Was there a rape? an other wtrrds, two things you got to have to have a rapa according to what the Stata has told us. pn,e you got to engage in sexual conduct with another, and it's got tq be bY PurposelY campal7,ing her to submit by force or threat of force. If thera was a rape, was it simply after evsrYthing had happened? hqrry told the police that aftar all af the assaults and death, he, Stuote, had sex wtth Martha, whicS drauld mean almost anYthf.ng. ` AyTa9.tt, there's no followup question to determine what happ"ed, $o they decide thaY have to rely on scientific evidence to see what the scientific qvidenca showra. Does it show any panetrRtion of either the gagiixal canal or the anal oanal't No. It does not. zs there doubt then, reasonable doubt, as to whether ttlese murdors were aorAected with a rape? Certainiy there is. 'rhay went COURT OF CCJMP BbNAS t MCNT[3__dM&RY CQUNTY r ONI[1 37d3. Closing Argument - Tsefense 1 to gVeat len,gths, an,d Dr. Harshbargefi is an hanortable 2 man, and he told you precisely that there ►zas no 3 physical evidence in his tborough anti detailed 4 inapetFtion of any penetration, either of the vagina or 5 of the anal r.anel. Yte al$o told you that the body of • 6 Martha's a sphincter was tight so that you would experat 7 that it there had been anal intercourse, there would be a some mark of injury. fSe also told you that because of 9 the ti,phtriess of the sphincter, the takS.ing the four io swabs th$t he had, to the extent thaY had anp 11 aontam5.nat3on on theia, thete's no way of knowing 12 whether the aoMtamination Came from inside or outside the anal canal. That's simply the way it ia. and so 14 that wasn't true of the vaginal swabp beaaus# of the is differenca in the aperture. Those would tell you 16 whatever was discovered inBld+a the vagina. And then 17 mr. Smith gave us an 9,lnterestlag dissertation on pNA. 18 and on hi.e studies, both chemical, miarosoopic, and 19 with UNA studies, and he told us that on any scientific 20 evidenae af penetration of the vagina, he could find 21 abso7.utely nothing. i3a told us on any ac3.entifio 22 evidenae of penetration of the anal oanal r this 23 chemical exaxnination was entirely negative, his 24 mlCrosctopic egamination was entirely negative, the DNA 25 xtudi" that he did show and he said kza had the ^ CQUYtT [!F COMMON 8LU8 ; MONTGOMERY COt1DiTY, 0910 3742 Closing Argument - Defense entire-- axamined the entire head$ of a11 four awalas so that any microscopic trace that came from anywhere would be shown, and, yes, it did show a match to Mr. Gapeift's riNa but it's impossible to tell whether that evidence oame external or in#ernal so tho scientific evidence fails. The semen that was found was found on the stomach and on tkte inner right thigh. The woman is on her back, semen is a fluid. It flows dowtx, When you're taking a swata In the rectuta, it's not aurpriai.ng that some was picked up. i"erfe.ctly reasonable, per;€ectl.y cansistenLt with the aontettion that there was no rape that occurred here, xhere was no penetratitsn ot the vaginal canal, no ,perietration of the anal canal by Mr. Gapan's petxis, and that's what is rec3uired to aonstitute the crime of rape. So that takes care of alternative number three, pi.cYG a oard, any card. The fourth alternmtlvd they tried to 8otauade you with here, beyond a reasonable doubt, above that bright line, is that taking Marttta' apurse sotaehow turns these mltx'ders into aggravatOd murders. Now, let's think about that one. Here's wiiat the state tells you a.gvravated robbery is. Iu attempting or coa►mittittg a theft ottonser all right, taki.ni; Martha's purse is a theft offenee, right? Sc that 3.f X'm going to take your purae away from you it COURT Ok' COMMON PLNAB : M4IN't'GCt14ER'Y GOUNTY, pHIO 3743 Closing Argument - befenso 1 in committing that offense, iinflict or attempt to 2 infZiCt phYgiCal harm, that's aggruvbted robbery. I$ 3 there any evidence of that in this case that he 4 infliate4 phystoa1 harm on 14artha or Nathan, or anybody 5 aJ.s® to take Ntartha's purse? 6 Is there any ev3.denae that 3,n fleeiug 7 iaieadiate7.y after the theft offense of-stea].ing the a pursO that he infl#.oted 4ny ha.ra[ on anybody? The only 9 evidence 9.t► this case is that after all the chaos in 10 that oondcminium, he stuaply, as he went out the door, 11 piaked up the purse and throw it tn the car. Why? 12 We rea11y don't know; maybe to see iP there was 13 something like that message from the cat. I don't 14 know. It doesn't Make any difference, But in order to 15 bave afo7.onx murdqr-- aggravatefl, based on s.ggravat" 16 robbery, it's got to be directly associated. The 17 killing has to be direotlx ussoclated with the robbery, 1a and tila,t #.s simplY not' the vase here. 19 Now, thase are all tho murder counts, and 20 you're going to get all aoSrts of words to wade through, 21 8ut eaoh of thoaa, X submit to you, Wheu you test thela 22 as you are required to do by the job that you have 23 undertaReri, unpleasant th4ugh it may be, abott you test 24 them against the bright line of reasonable doubt, the only thlog tAat gets above that ].ine is there wos a COU$7,' 1 purposePul ki,1l3.ng of three people. That's murckor. 2 Al1 the what ifs, the At&y'bes, everything below that 3 line, that's aggravated murder and since it's not abavo 4 the line, what should be the result here are 5 donviotions of three counts of murder in this awful 6 B ituati.os^. 7 NCw, wa hacre gbt four counts that• are non- 8 murder oounts. There's the couxtt of breaking 9 d6tention. Well, good grief, nobody can sit up here 10 and tell you that ana isn't over the bri,ot lin.®. No a question it. Larry got put on deterition because Martha 12 made charges against him, and the fact that it's Martha l 13 who's break9.ng detention mexrily with him from July 3rd 14 on doesalt excuse the faot that he broke detention. That's over tbe bright line, beyond a reasonable doubt, 1f sure, he broke detant3on. No queatinn about it. 17 AS far as the othor three oounts, aggravated 18 burglary, rape, aggravated robbery, i.t dos$n't hit the 19 bright 19,ne bmoausa we have already gone through that, 20 and r won't belabor it aga3.n with you. So that what we 21 hav$, is a sad and terrible tale of three murders and a 22 bx'ea3cing of detetttton. That's whero this case, I 23 think, sbpul.d aotte to rest. 24 I told you that Larry CiiApen is one of us, 2s 8nd I m@o11t thttt, not just in a oe11fie that we' xe al3. 95 ^._. .: coUaT OF COMMON PLZas : 14oN'rSOMExY CaoxrY, OHIO 3745 Closing Argument - Uafensd petaent siike aaoordi,ng to tho ribbons ot DNA that turn us into people. 8iit everybody you have heard i'rom in this case that knew or enaouatered Larry Ggpen before this awful raess of September 18, had nothing but kind and lsonoxsAle and good things to say about him. Kacee, known him for several years; Heather, who imd known him just through his coaahing her boys in £ootball, Charity and Jimsy,.of oourse, I guess they're his ah.ildren so you have got trr listen to that with that perspective on it, Steve Menard, who has known atm for many yeaxs, Pat Mulligan, who had on,lY known him as his attorney in connection vith the abduntionlchaxge, WhAt we have- And the othor thtng you heard even after thie event #rorn tha people that didn't know him is that Larry's sole concern after this awful exipi.osion was for these two little kids, Oit].y and Brooke. When he's initially arr:e;sted, watch out for the kids. The kids are In the oe►r. . Whe» he's brougb.t down to the Detective Section, are the klds all xight7 The kids that he wa$ going to completely lose Sf h6 couldn't gat back together with Martha. Y think what we have is a story of loving and not latt^ag go, a s.torx of a man reachidg the breaking point and then, in fact, breaking. It is an itonxo G'OUitT 010 COMMON __PT,RA9 : MOWM0MkiY Cot7NTX, OIixQ 3746 Cresing Argument - Defense commentary that the book that Daniel's ninth grade teacher some years before had given to him about overcoming hurts a'nd anger ia lying there on the floor by the master bed. As you go through this case, as you study it aanonq yoursel,ves, I klope that as pou weigh the evidence, You'11 try to resolve the.eviflsnce if you find conflicting inferences, i# you find what #.ts, tt 1 ►ou find mAybes as anyone will, that you will resolve those as T think you should, in favor of innoaence of these crimes of aggravated murder that have been charged. I hope that You will give the evidenae in your JurY room the•saxe attention that you have given 13 to it and to these arguments today. Each of you has to 14 decide this case for yourself. And 1 hope that whon 25 you hs:ve weighed a1l tha evidence against that bright 16 line of reasonabl.e doubt, you will agre* that the 17 rsrimes wl.th which this man should be convicted are the 18 arimes that he committed, three murders and breakiiig 19 deterition, and it would be a miscarr3.age of this legal 20 systeat to oonv:ict him of anXthing else. 21 THE CpUTtx: i.adies and gentiemen of the 22 3ury, we're going to take our noon recess now. As 23 indicatect earlier, i.C is very important that you not 24 d3scuss this case among yourselves, do not permit :>_ 25 L.. ar3yone to d3.ocuss it with you. Do not be around or try CQCMx pF COMMON HLBAS c MCtN',COoMP7RX C4UNTX, OHIO 3747 Closing Argument - Uefense to grab ahold of any newspapers or talk wtth any rlewB taedia or anything iike that. It is your duty not to form or H7Cpr8ss any op3.n1b31 bn th718 DaBH until it is finally submitted to you. You know, more is yet tp come so ypu must wait until that is complete before you continue with this case. You will be in recess unti7. 1;30 (The luncheon recess Is taken at 12:00, and the fol.lowing protmedtngs are had at 1:30 p.,h. j Defendant aud all otlunsel present at 1:30 p.m.:) IN 0PBB COURT: xBE CQUItT: Any further statements from the l3efease? NAt. COX : Yes, Your Honor. THE COURT: Proceed. CLGISZNC3 XlRGUHSNT BY MR. CQX: Well, I know xau're tlred, and the Judge told you that 9.aw►yers are going to stand up here and talk to you for #ive hours today on closing arguments, that prdbably peall.y turned you off, and I aan understand, Bach of you indivickually is going to harre to make a determit:ation of wiiat the facts are in this case. Bacte of you has to make that dstermircation, and you took an oath and promised the Court and yo:i promi.sed the COplt'1' QF` COMMON PLEAS : MON't'GOMF.RY CCIi1NTY r OHIO 37A:9 Closing ArgumeAt - Defense tlovernment as well as the Defense that you would do 2 that, The Judge is going to give you the law in just a 3 3.j.ttke bit, and it's somewhat lsnqthy because of the 4 sixteen counts. It's going to take quite a while for 5 the J'udge to give you that law, and oaah of you have to 6 interpret that law an the 3udge gives it to you, as you 7 were told before, and each of you has to do that, and I 8 want to take it from a little different perspective in 9 talking to you for a period of time beCause th3s Is the 10 last time that the DePense wi.1l be able to talk to you 11 until after you have finished you3r dazliberat3.ons and 12 your verdlcts. I want to thank you for youx attention 13 in this oase because i have watched you and you hava 14 watched spe and you watched all of us, arid you hava, a 15 few af you started ooming some four woeks ago that I 16 met during the jury seleot3.on proo$ss; some I didn't. 17 All of ths way up until right to now, you hava realli+ 48 paid attention, and I think that when you said that you 19 would give us your undivided attonti4n, you woUld take 20 your strong emotions that this kind of case provokes, 21 and does it provoke it, and you knew that when you got 22 this job arzd you accepted this job. If yo+a let your 23 emotions let control of you, the Defense would not get 24 afaiz sbAke ia this dase because just the violent 25 killing, ;purposeful murdering, thre® people is COUI{T qPCOMMRNBE,EYl.S_MON'Y'C3f3MHRY CaUNTY. OHIO ^ 3749 C14sirig 14rgument - Defen.se 1 revo2ting. and Larry Ga.pen did that. You were told 2 that right up front. That 7tg not the dispute. 3 Now David Greer and Sandra Hobson, the ^ Government Prosecutor, hAve analyzed different respects 5 in the dispute. 7t would just like to talk to you Prom 6 a little bit different pxospectivH, and that is in 7 judging the fqcts of thls case, you have to keep an 8 open mind and look at everythizs$ and judging and using 9 yo►xr comman aerase, using your intellect, you have to 10 make certain interpretationd, and in doin.g that 11 sometimes you can make an inference from a fact that 7.2 would benefit the Goverrnn+ant. You can make an 3.3 inferenoe from tb® fsct that you beliove to be true 14 that $mvors the accused in this gase, and if you can 15 draw an infereboe both ways frum the same set of the 16 facts, there's some doubC there, and with a doubt, you 17 know who that favors, that favors the acawsedr doesn't za it, and you took a duty to £ollow tk►kt. 19 Nowt without goiri8 to everyooe's testimony, 20 f3ome lawyers gat up here and warit to recite back to you 21 what ba soid or ahe said. I don't want to get into 22 that. Out t want to start at the end of the case and 23 Ito b4ck to where we started from a week ago, wMen.k and n 24 half a go. 25 Detective Mark Salyer, I bellevo was the bsst CoUktT oF CpN3MC)x 1'L^AB : KoNTGiOMLRY COUNTY, aHtU 3750 Closing Argument - Defense 1 Goverruaent ta3tness, and he's a#ine young man. .hnd 2 what I'm a.bout to say Ist reference to law enforcement, 3 do not talte that as a persoYial attack on any officer 4 because you're going to be given instructions that law s enforcoaent officers are no diffgrent than you or I or 6 any other segment of our society because they make 7 mistakes. They make mispexcsaption.s. They ce4se what 8 they isercoive their duty to be and they go at it ag $ they shauld, but sometimes theY 9'et a little 10 overzealous so in looki,ng at some of this evldence, I SZ vrartt you to evaluate that. I,et's go baok to Deteotive 22 Mark Sa.lyar. I believe he was him and Detective 18 William Vlsholz, whom you heard ahout; was the two 14 13etectiv®s that 9,nte,rtri.ewed F.arry Gapen, and state's 7,5 &xhib 19 Gapen was in the interrogation room over at the Dayton 20 Pol:loe Department around 8:25 or 8:20 when.the Vandalia 21 offi.oo7e delivered htm down to the Dayton Police 22 Aopartment to the t3etective Seatioix, thexe around $:20 23 or 0:25 on the mora3.ng of 9ept6mb®r 18th these two 24 dateat3.vea came into this interrogation room, and they had been out at the soene, and you C:an just vlsualixe Coimi' C!F CpMMOS PL13AS : HlMnQMERY CoUN'1'".l, 4HIo 3751 C2os3.ng Argument - Defense what that scene was like out there on Pheasant Hill; that would revolt anyone. Th,oy knew that Larry Gapen-- Within 20 rdinutea Ai'ter the police arrived, Larry Gaperi wa;s the primary suspect, the ex-husband, the san, Dattie], Marsha71 had seen him. They had Daxeiml i;n the patrol car. He begins to tell them what hetd occurred. '.l'wo children war@ missing. They had see1(l a1l of that. X believe Det. Salyer and Detective Duxasky had been out to the Brusman pJ.aoe earlier after they had 2eft the scene. They knew Vhat had occurred out on Srusman. They checked the house and everYthing. But what really disturbs me iS that when Detective Salyers said he went through edoh one of thoae rights, tt+id him that he d3.dn't have to make any statement and do yttu uAdek'sta,md tbat. And he iriitialed it. He got hiB age, and he• sxys, now I want to talk to you about the crimes of murder. And if you Tdill talk tt? us about ltr sign your ndmo and waive your rights. Now, Larry Gapen knew what he ha.d doae. And he saYs. "I have an attorney. I don't want to talk to you." Because he already was on home eleCtrotio monitoring. He was already charged with abdtactipn. "I have a lawyez', I don't want to ta1k to yaU." So what did the Officer do? Ha printed "1'efused". And then qfPicar Salyer and Detective Elsihol7t affix their Bignature to that. Nvw 2'm not COIIRT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 8752 Closing Argument - Defense saying bet. Salyer lied. I never call a rtitness Sn any aaae a lisr. But I ask you to use your common sense and I ask you to use your inGellerst, your itsgia, and your experiences io liga. Now, for an bour and a halt according to Det. Salyer, starting at 8:30 when this form was filled out and dated until tan o' c1oa3C, tkiay sat in this intexrogatfon room, Det. Salyer said never left. Attd he was que8tioned, w'e11, did Mr. Gapen give a written $tatemont? Nope, he wouldn't give a written statement. Did ha give a recoxded statement, turn, a tape recorder on snd you know what happened7 Nope, we don't record these stataments, ttfase confessions. But after we fiinlshad, excuse me, after we finisbod, we did ask him did he want to give a statement on a recorder, an hour asid a half later, and vldeo, atad be said no, he didn't warit to giae it. But they're asklng you to believe, to ;ely upon 3t, and act upon it in thi.s oapio. What is the best evidenCe+ tp ktZerir what rsally hs.ppened in that xoom? Now, and it comes up becauSe, well, I remember Aatective Elzholz asking Ehla question and this was his response. I aroraembex asking questions and this waa bis response. Did ydu ever beer rieteotive $a3.yer tell you what really happened as far as Larry Gapax3 told hi.m? He never told the sto3ry. I left my hoUqe, I did this. I' di,d that. I got the maul. T COtiRT OF CC1MN PS.NAS :Mc7tt'I'tfWBR'Y COtJ1QxY, 0010 Closing Argument - Defense 1 packed my bag with :ay nlathes in it. I aomg over there 2 booauss I krieW I dift't want ta use mY 5un. I was going to usa a maul, You never heard nothing like that as far as a confession, did you? What happened was Larry fdapeo didn't want to talk, he had a],awqex, he knew the vicious things that 7 he had done, and he may have made some admiastons. And a what they did, they had to get a report out of what was 9 in it. They said, woil., wd never communioated to Sgt. 1U White, head of Homicide Squad. we never esommunioated il to Detective t►v,nsky, the case detectS.ve. We never communicated to anybody what was going on even though ^ 13 we had him. he gave a full confeas9.os:. Now, i# you 14 bel9.ove that, you'd beli.eve anything. You know those is polia+s officers all got reed5os. They got rsell phones. 16 They're all i,n contant and awamun9.aati.ng all the time. 17 tf anything happpns in one plasse, it's being-oo- is ordinated through the homicide sergeant. I dida't know 19 what had happoned up there on Brusne.iJ. (sie). i d9.dn't 20 know what was going on. Nothing was communicated to 21 anyone. Do you really b®lieve that? 22 Now why is that ioipoxtant7 If Larry Gapen 23 #illed those three people, why is that important? 24 Because when they interviewed him, they told h9.m it was 25 murder. They knew What it was, They knew where they COtJit^' OB COMMON BLEAS : MC1HTt3AMRY CQtJAXTY, OHIO 3754 Closing Argument - Defense were golng. Think about it. How, it's a perception. Did you take any notas7 AeteCtiv+g Salyer said nor he d3.fln't take any notes. 9its in there for an hour apd a halt, taking a qonPesslon t'rqm a man who has sefused to waive his right to ari attorney, give any story, and he says x talked to him, questioned him for an hour and a half, i never took bn,e note. That's what Det. Salyeir told you. Det. Sal.yer, nobn that dayr had been on the Homicide fiquad for three years. said T didn't know how to get evidenoe. He didn't know how to get dvidenoe from apersan that he had bdoked in jail and he's talking to a deputy or a at>rreational offla+er over there behind the oounty jail about noon that day trying to find out what forms he needs to do and how to get prraoorty from someone who has been booked in. jai3., and he's been a hqmieide dotective for three years. Does that ring a bill, te11`you there's somethlng wrong hara't Now, riet. Salyex says I remember Detective Elzbolz a,skin3 him how did the maul gHt there. Deguty Salyor says I reigember him telling Detective Elx'lho15 that he brought it over there. How, brought It over there. The perception is when; did he bri.ng it over there that nigrht? Did he bring it over there when he COURT qF CQNIMON PLEfAS : MOIV'FGON^ERY CQUN'T'Y, OYi10 3755 Closing Argment - Defonse movod the stuff #rom the neer bzuff a month ago? That can be interpreted two w%lYs. To give you an e7taMp1s, Detective DunskY on the stand, I asked-- lIe gets on the stand vrhen the Government que$tions him. Ha says as x come in, ImaMe my nursory, check the pXace out. I small. I gst the odor of it, He said there's blood drops, notice the blood on the kitchen floor-- on the table, I notice a couple blood drops, one in the front room. I loolk around. I go upstairs, see a blood drop or two on the lower steps. Hlnod drop or two or whatever, second step. Your memory is bettar than mine. Getting oi.dex, walk down the hallway to Jesica's room, there's a couple blood spots. He sald, yup, it led. It was obvious, the patterp that led right to %lbPtiaa's room. And I get up there and 2#ay, did you: know that prlox to your arrival, aesica's injuries, tlte paramedics had to put that poor girl on a b9ck board, got her out of har.room, down that haiz, down, those steps that aurl arp[xnd and out that door to an ambulance, could those blood draps, a fera of. thesn, considering a7.l the blood that was at the two different locations of the massive criXae? Ha saf.d, Oh, yeah, he said, you knoyo, that aould be interpXeted either way. Sithor it went up or i.t went down. Do you recall that? tiat those miSqonceptioris. COURT QF COMMON BLIM$ c MONTGOMERY COUNTY, pRIq 3756 Closing Argument - Aefense ?hat's thq problem, that's the problem in this case, ladies and gentlemen, on what Aet. Salyer dtd. we didn't get the wtxole story, You turn the tape recorder on, and you have the fu1l oonveraation. We'd kr:ow exactl,y what bappened in that i.nterroga,tion room far an hour and a half with Aetect3ve Sa3.Yer ahd B3l1 Blzbolz. Sut we do-u't have that. Didn't take any notes. He sald, Well. Bill Elahola took a few notes. At least t1At's what I think he Said. Your memories are better than mlne. Then we wmnt out afterwa.rds, after ten p'olock same ti.me. We sat down to 'one of tlae little pomputerg i.a the Aetoctive 3ectivt, and I put the Snformation 9.n tha.t H3.l1 E3.aholx and I had deternr.ined that Mr. Gapen had said, And other than that, I never 'ha4 anything to do w;ltb this case other than i did go over and get tllae clothes, and. Ah, ye$h, seven o'clock that night or 7 c L0 that night, alatt" at noon, about 7:10 that n3.ght, I called an evidence teahnioian, and he ao:ae and pioked th8 clothes up. Septomber 18, 20000. Tha middle of June, 20003, and he come in h$re and acted like it ju$t rolled off. Something wrong. dameth9.ng wrong. Yau can interpret It tvto ways. Now that there's a dispute, they want to come with aggravated COUAT Clli Cf?MON PLEAS : MqNTOOBVRY CS?Tt^l'P ©FixO $757 Closing Argument - Defezise 1 murder and any sp+acif9.cations, thay got to make It fit. 2 They got to make it fit. I want yrsu to think about 3 that when you're in that dellberat3.on room because you, 4 each and every one of you who deliberate this case, you 5 have got to put your name to a verdict form. And like 6 x say, iike Mr. Greer asked you, the Government can 7 charge ar:d they did i.n this oasa, they threw the 8 kitchen sink at you. As an old country boy llke I 9 said, tbey hit it every way they could. Threa people 30 dead, 12 counts of aggravated murder. They just threw ^i it hoping that sometbing will stiok. Larry Gapen 12 murdered those three people and should be found gui3.ty ^„. 13 of tYie rauxder and he should be punished accordingly. 14 There's no question about that but convict him, ladies a. s and gentlemen, for what he did, not because af what the 16 Ciove'rtixment's trying to g®k you to convict him of 17 bocatu3a the evidence In not there to support it. Thiiik i8 about that. 29 Think about Detective &alyer, how you can 20 Interpret when it aame over from one to anoth.er. The 23. besti evidenoe of what happened to those thVee peopke, 22 to understand that, use your cora+uon sonne, use your 23 Zog1o, use your inteilect, you know people, you've been 24 mad. Xou've gotten macl some time In your life that you 25 had trouble controlling it, almost see red. X'm sure Cpt112T OF COMMON PLIAd : tdpttTf;MRY GOtIPt4'3C, OXIO 3758 Caosi,ng Argament - Defense you have, and most all of us have always been able to take a deep breath aud coo], it, We have never reached that. We're not sitting in one a£ these chairs, but you kriow how human beings react and how things build in buman beings, and poople reach a bre4king point, a.nd they blow, and you contrast that theorY to the theorp that this was pr3or calculation and design, It you really thought about it. Larry gapen owned d gun. ' It yvu're Soirag to try to k11l somebody, you going to try to do it with a thing like that when you aan takn a gun and put it in your pocket and walk in and shoot anybody any time you want to if you rea17.X want tQ kill them? l Get them alone and kill thaaa w2fen there'8 no vritnesaes around? IE You really want to kill aomebody, you want to plari it and think it out, you not only wgmt to do it, you want to get away with 1't. When these BeGp1e think abottt killiti5t sqa+ebody, pXanbing, prior calculation and des3.gYt, when they to s+amethi,ng stupid like t2tat, they don't plan on qett5.ng caught. Did Larry GaPen do an1*thing that would indicate that be Wasn't going to get caught? He goes Into a hQuse; knxws that, it's his faai3.}.y. You got tq put your r►irtd in Larry Gapen's mind. Thiis man loved Martha MadeweXl, you hoard 1t. She'd had-- It was hor fOurth marriage. She tiAd the o7.deat, Daniel Marshall. COURT PF C(?MMt?!3 PZYAS ; MOHxf3OMk2PY CENJF1TY. OHIO 3x59 Closing Argument - Defense She had Jes;Laa Young. She had Billy and Brooke and fourth marriage, and that was over by dissC:lutioh to Larry f3apdn. i,arrY Gupen, same way. You heard that prior marriages, get that volatile relationship. She had four, Larry had two--six kids. Love and emot.fon, trying to make the system wqrk. That's ituman boi:sgs. There ain't nothing wrong with that. I'm not criti.ciaing anybody for that. People want a famtly. You go out there on Deer Bluff. Man, is that the American dream? I'd like to have a house like that. You might think beoause I'm a lawyer I have one, but T don't. That is a beautiful home aks Deer Bluff. Nice field, nioe yurd. You got a wife, you $ot dhi].d.ren. Now, that ia the American dream, but as these ahildren 4ot oider, the friotions deve3.otaed. The conflict between &tep-Chi7.dren a.nd stap parents, the friction developed. TYie finanoial situation. i.arrY t3apen's arrested, #350,000 in debt, $3p,400 worth of assets. Got cars for l)ctih boys, be's orrt a car. she's got a car. Got a Corvette sitting there nobody drivds except on speoia,l oooasions. that's a poor house where x oomo froia. And when you haLve those situations, you have fi.nanaial problea►s. You have the 6notionral with the C+pURT 0IP COMMON PLFA$ : MG1AITOfdMZRY COd51T'Y, qKO 3760 Closing Arguaaent - batense pressures bull.dinq. Laxx'y gApen's tXpl,rig to J10.+sks it work. I'm not tsla.taing Martha. I'm not blaming anybody. EvezybodY's a loser in that Eamilx, 8illy, Brooke, Jimmy, Chazity, everyone. But you have to look at it through Larry Gapen's eyes: He walks in there. They Gome out with a pieGa of paper, says decree of dSssolution. That's a piece of paper. x#sat tells you that you're not married to the someone who you love. The mind, you think it Just gets turned off li$o you turn a t5plgot qff? l.t Just doesn't. fihcrso oraotians aro deep seatod. They have been together a 1.4ng time, doing evexythxzag. Love and eraotion. He walks into that house to talk to Martha, tryirig to make i.t work one last time because ho thought she had a boyfriend, and he sees a man with his pants oi't laying with his wife in his mind. He blawt And you know the results of that. I don't bave to teXl you the results of it.' Arid he did a horx'ibler terrible monstrous act that no human being can condone, and-he deserves to be punished, but he doesn't deserve to be Dunishad for sometbing that he didn't do. It's not pick-on-law-enfprcement day. Detective DuASky, finp Detective, Cuse Detective in this case. Xou saw Detective Aunffiky get on tho stand a couple days ago and you saw the Prosecutor ask him COURT OF COMMON PLUS ; MpNTf30M$RY COUNTY, OHIO 3761 Closing Argument - Defense 1 +uest#.nxAs. He asked those questioris. He rolled tho9e 2 4nswers right off to Mr. Daidone. I get up there, and 3 I'm trYing to get tt;n whqle story, and Just remember 4 his Condu.at on the stand. The de#onsive postexre. You 5 know law enforGemBnt, Detective Dunsky, has a duty to 6 gather the evidence to prosaoute thm guilty, but he 7 aleq has a duty to gather the eVirlencsy whlch tells 8 real truth of the mat.ter, the whole story, not half the 9 story, that fits into the 1lttle block that the lfl Government wants it ta Pit Intq. 11 You hear the other part. They're tryizg to 12 say that he packed ap a bag. I guess was that Ved 4x. ^ 13 bag, in the trunk of that Ford Taurus. I remember 14 seeing a piature. He paalted up his clothes real neatly 15 and we kriow that he always went in the house with his 16 shoos off. He goes in the houaet he's qnrrying a Ihao 17 with his clot'hes. He's aaxxyin8 his shoes. I guess 18 they think 1e's got tk►e maul ugder the arm and the 19 gloves, and he come there witla prior oaiculation and 30 design to kill Martha. Now, that just doesn't fit. 29. Think about it. xt doesn't make sense. It's 22 npt logiaal. That's where thdy're having the problem. 23 That's why they had those criminalists and Detective 24 h,un,sky said, yeah,.thelr co11®at what I tel3, them to. 25 Do they need all that? They got the s COORT QP COlNMQ PLZAS : MONMMERY COUxTY. OW10 3762 C7.oaing Argument - IIefcrfo0 question. They had Larxy Garen. xhey had Daniel. They had 8illy. I mean thwy had Brookes (sic) rather. Nab, that's just^- Let's try to-- 5o if you're looking for weight, all the phyaiaal evidence, 3teah, why didn't? ypu got these tsriminad,ists wtell traitacd in modern times to put these goggles on. They got this altertsative light. They can go into a room and see blood when you can not see it with a naked eye. Did they go a11 the Dlacea and put their goggles on, use their alternatiye ilght? No. if they had done thia- This is Vhat we got. We're not interested in, gotting the whplo story. Laying right there on the coffee table is the Fio:tida -pack and we know Detecti.ve Duasky did the-- arime sagne detective, from the middle floor. We know Deteativ* Duasky did the crime scene on the top floor. lirtd we know the G]CSmia4].1ats, the crime sceit6 unit' gathered evidettce. Who is the Cr3.v►e scene detective for the iower floor beqAuse we wanted to know about that b'loxida package, thos+4 tiCkets, kept trying to ask queation@;. You heard the answers. The relationa kept go9.ng, Ladied and gei:3tXelpelqr They had this- They d1vlded up Martha ?dnd Larry, L4rry's on house arrest. She's right over there, $he knows he's qn house arrest, He's right CpURT or COMMON PLEAS t bit'3DP1'C+(?MERY COUNTY, OHIO 3763 Closing Argumarit - Defense over 4t Obr hause. They just keep right on going. Nverybody keepa on going. They don't p$.y any attention to the sXrstem. The system failed on this case, thi$ situatiop. You know what the witnesses said. I don't have to do that. I'm nat attacking the system. Larry ciapen d3,dn't do what he was supposed to do. Martha Madewell didn't do it. A lot of peopl.e didn't do it. Ascd we're stuck with this situation, and I'm asking you, ladies and gentlemen, just use your common senae, your intallect, and y*ur TogiR, and ycsur life ext+eriengss of human emotion. And you walk through, if you can, in your eyes, in Larry t3aperi's eyes, Not that you can justify it, not that you can rationallxe it i.n a.ny way, but at least you can understand how people can £li.p. They can reaoh that trreaking poitt, and that's what Larry ftpen did, and. x believe the proper vardiut when you aaaluate all the evidanae which you have got, and you judge those witnesaes, you judge those golico of#icera. You hold them to the atarldard, Hold them to the standard, Just bacause they're Government, you can't 3ust necessarily belleqe them. You use the same test you use ori everybody elsa. mhay're no different than you and I. You evaluate that whwn you go back to the deliberation room, and you evaluate whc, gathered COUNT 0#' CqMM4N_P ,iFA8 : NOR'1'OOM^'.,RY_ COUNTY, OHIO 3764 Rebuttal Closing Argumont - State it, how they gathered 3.t, laak of it, vhat the evidence is, and Rse Youx credibility oa the Judge tslls gou hbw, Test it, and the Judge is goS.ng to tail you how to dq it, and you follOw his i.nstxuatlpRs, and each one of ypu follow the instructions that judge Petxold gives you, and you interpret those tnatructiaris as he giv'ea it to ybu, and you work together as aju:cY. You're going to find that the [3overnment hasn't proven th$ir aase, not beyond a reasonable doubt, not of aggravatgd murdem it Just doesn't exi.st. It's murder, and that's the verdiat you should sign, and the lart will take care of it after that. Thank you, ladiss and gantlemen. TFg aOCRT: Mr. Dai.dons? hlk. 17AIbLlBSE : Thank you. REHLiTTAJ, CLOSIN4 ARp'UMENT 83C MA. n41urYNE: Your kionor, Counsel, Mr. T?uAsky, ladiss and gontlerae4: Excuses, axcusos, excuses. Martha Madawell, it's her fault. She played him. It's her fault. Iioteestlva Dunsky, it's h.i.s fault. Mark 8alyer, it's his fault. He didn't do his job. It's his fault. The State, the Prosecutor thraw the kitchen sink at the Defendan#. Somehow it's excuses, Exvusex, excuses, COtJitT QF GOI+10eClAt PhUS •Nt?N'CC#qMkRY Ct30NTY 0910 3765 Rebuttai Closing Arguarent - stste exouses. Wben you go back and you deliberate, you foi].ow t4e instructions that the Judge gives you. Yqu look at the appropx'iate facts that came from the w.itnoss qtand and the evidenoe provided in the aourtroom. When you deiiberate a cass, you stay on the path to gex at the truth of what happened. You don't take a detour because wheo, you start to detour, you'll lose your way. You stay foou$eQ on the facts and the truth of what happened. Do not go down the detour. What did wo hear? We7.1, let's talk alaout some of these detours. we hear that somehow the Frosecutqr's offirse is throwing the kitohen sink at this pefpndant so when you gst baak there you start tke3nkiag, hmmm, maybe the Prosecutor is not doing the right th^ng hare. You knolvi we heard AQr. Greer say it's kind of like playing oarda. p3.ck' a card, and ree hear words to that effect so WPion you go back, you start thinking is there something wrong here. You know what, folks, there are #our different typeg of aggravatpd murider. And the fecte of this casa as shown through the evidence supports each and every one of those. You know who amade the facts in this aase? You kisow who doo.ided whaat type of charge to pick? Ypa know whore the fa.ats came from? kTot from the State, from the DefendaAt, frcm the pofendantt You C4Ult'Y 0r COMMON PLJQAg : N[QH'fCioMSRY COUNTY, 4Hlo 3766 Rebuttal CIoSirig Argument - StatO hear of aggravated murder, prior caloulation and design? Psom the Defendant. Aggravated murder based on raps, buxglary, aggravated robbery, from the Defendant. So when you go back there, yoU don't take the path, and go, Ood, aro they doing something wrong here? You follbw the law that the Judge giVes you. ,And you look 4t each and every on8 of those charges, and you qpp1y tho facts to them. Do not get misted, DO not taMe that detour. The.n we get the police, and Detectiae Mark Salyer has to sit here and itstan to this. You know, It's 5.ntprest3.ng Mr. Cox says, wa7.1, I'm not going to call hts a liar, and x'm not going to say he did anything wrCng, but there's aoaethi.ng wrong here. W61.].ar that's what he did. You thin$ that DHtactive Mark Salyer is going to got an the stand and. tell you thixig8 that aren't true? He'a going to get up here and perjure himself? You know, the police are not on tr9.a1 hero. Aoteetive Mark $a1yex is not on trial. bataotivg Gary Aurisky is not on trial. You know who is on trial here? The Defendant, he's on trial bare, These clffiCera came in and did the beat job they could. They told you what they did. xhen ws have that rights form, atnd it gets pointed tQ saying, look. it's refused. xt's something COURT OF COMMON PLEAS : MQN'TGO1K8RY C<)CIN''X, fJITxQ 3767 Rebuttal Closing .tfrgrument - State wrorc+3. 4s did something to get th9.s guY tp say something. You heard what happened. You heard what happettsd. Af ter he said he 9uid a lawyer, they got up -to leave. They were lea.vi.ng when he said, "Can x ask you a questjon3" Ahd Mark Salyer said, "Fure,° and then ha #ts.rted talking about the case•. xhat's the evidence that's admissible here in Court so when you go baok there and start thinking about, oh, God, what did Mark Salyer do? Mark Salyor is tat on trial here, and somehow the policemade this up. We hear, you know, the palS.oe kneur what was g4ing on there. That's what he implie,s, and somehow Mark Sal4er fitted the taats to th.e saane? You he4zd wha;t Mark Salyer testified to. He didn't know there was a rape there. He didn't Xn4w there wao a purffie. Those f.4cts caate from the Defendant because I£ #t didn't, then Mark Salyer must be a clairvoyant to know th1S stuff, and he's not. He's just a J1qteative that recorded what the DefendAnt told him wlaat happened. Aan't go down thd path and be b►iSled. Then we hear the sysxem fai],ed. Well, you kndw, the syst®m didn't fail. Wa hear that escapa, we heard the stuff about HI. We heard the stuff about yre•Tzlal Services. This is very, very simple. The Defendant was on electronic home datentiau. The CFyUli,'1' OF CWMODt PLEAS : MG1N'193D1d14RY CQMTY, DIiIo 3768 Rebuttal Closing Arpument - State Defendant is * liar. The Defendant called and said things li.ka, I'm going to come home early toMight. It's PridaY. I have to work tomorrow morning, which is Saturday. X gqt to work Saturday morning. I got to tA1ce a normal shift on Sunday. The Defendant #.s a 3.laz whou 9.t aame to Pre-tri.al ServiCes. The system did not fail. He is a wise manr the Defendant. He figWred out how the system worked. H® took every full advantagg of it. As long as 2go out whon I'm supposed to be at work, I can roam around and do whatever X well please. That's exactly what he did. The system didrt't fail. You know, maybe the system f ailed in the way thBY trugted him to be tlanest and tell the truth to help make it work. iie didn't do that. He did whatever he wanteo to. Thbn we get th9 debt; who carettP They were in debt; whq cares? is that somekso+a an excuse to kill three people? He's in debt. go's a lot of people. Who cares? IIfo not go down the path. Thea Martha, what do we hear? We hear stateaisnts said this morains, whatever Martha wants, Martha gets. Sha's got to be insnited? Somshow this Ia Marth4's fault. You Ichow. Martha was a mother. Martha w#s raising a family. Martha was working, and, COCJRT OF COMMON PLIAS e MON'£c3t]MXRY CQC1N'.t'Y, iiHSO 3769 Pebuttal Closing ArgumeYit - State you xnow what, har marriage with the D$feu.dant ended. There's 4 lot of relationships that are in trouble and lots of people havs problems. 1t ended, Jvut, you know what, you know what bax' fault is she still had them in ieer 14te. They had children, not together. 6he had children that enjoyed the Defandant's oompany so she kept him. in a part of her life for her family. Even if they stil1 dated, who cares? Somehow that's an excuse to kil1, to 3CilX7 lt ie not. Walk away from a relAtionship. If it's xlot Wlis.t he wanted, see, everything has to be the D,efendant's way, Pre-t.rial is out, do what I want, and 13 if I coui.dn't have Martha, no qne alse could. Tbat'q 14 what this whole case is about. 7.5 Now, let's talk about th8se aggravated 16 caUrders, and when we talk about it, we heaard lots of 17 words today like the 17s#eadar:t snapped. He was a is valaano. Hs let go. Well. you know what, fo1ks, when 19 you listen to the Court's iustructinns, you're not 20 going to hear 4nzr iastruationa on. insanity. This is 21 not an 3rt,5anity case. You're not going to get any 22 iAstx•uot4ona on the defense of insanity. Xou're not 23 going to gat any i.nstruCtioris about dimiriS,s1ed 24 capaaity. ,pidn't happeis• Z'S MR. saARSR.: I'll object at this point. CQTJ1tT pp' C©MMplT BI.EAF ; PxLTNTGUHXbiY COUNTY, C►HSo 3770 Rebuttal clo$ing Arflamont - State TEM GbURT: Sustained. MR. DAiI1aNR: It's nrrt in this aase. Yt's x:at in this case. Do not go dc+wn the path. Do taat go dqwn the path that way. MR. cfRHICR: Same r,b9ect#.nn, r3it. DAiDC7NE: sqstained. Don't do that again. MR. 11AIDQNR : What we have got here is aggravated murder based on differerat theories. rirat# let's look at prior ca;culation and desi9n. 1t',s vexy, very simple. Very simple. if,id the netendant have a plan when he went over there to kill? Was it something a momentary spur-af-the-moment, pr did he have a plan? And the Pacta aro vary, very, very simple. Ybu kncsV4, it's lnterest3.ng that we hear a lot of Az5umento well, this was a stupid pian. This plan masn't that good becguse he got catight. Wall, ybu krsoww, when you go back there, and ther4's nothing in the instructions khat say it's got to bo e good plan. MR. aREER: I'll object, Your Honor, the x8:eezertce. mHE COURT: Sustained. I'll give them the ^nst^ruat9aas. MR. DAxnoNS: CGtIRT QF CaMaN kJ,,RAS : MpNTtiaMRRY COI1NT5f, OHIO 3771 itebuttal Closing Argument - State You're going to fo1low what the Court te12s you on the jury instructions, and you follow those instructions because if somebody haa a bad plan or a good plan, it doe;an't mattex. What you're looking for is: Is there a plan? And the be,fenne this morning argues, Well, God, if this was a plan, it was pretty stupid. I meaA he got oaught. He left thu gloves there. i3e left this here. You know, it's very interesting that this morning wwe hear prior calculation and desi.an m$ans before. What vas his plan that he did up until the time of the killing doesn't mean what he did afterwards, but then in the next breath, Mr. Greer this morning says, well, look at everything he did after the killing; that shows it's Irrat9.ona1. lie left stuff there. You can't have it both ways, but the most important thin$ to note is this: Tt's the pxan, not how well the plan 9.s or how bad it is beaa.use if you would carry that to its absurd conclusion, what, only A1.bort Einstein could oomm3,t crimes? And if you ask Martha biadewell, was that a$ood plan? No, she died. He carried out his plaay. So theY can belittle it all they waAt and say it was not agood plan, ahe died as a result of that plan. Jesica Young c31ed as a result of that plan. Nathan Marshall dled as a result of that plauY, and don't lat words 1ite, this plan is GtsC]RT oH' CoMNInN rz,EAS : MONTGOMERY COUNTY, pFIIa 3772 Rebuttal Closing rirgment - state irrationai. It's strange, it's weird-M WeX1, the law doesn't worry about things like that if 1t's a weird plan or an irrational plan. Think about it. ,AnY type of murder is irrational; it doesn't make sense. Scs when you go back there, 1t's the plan, not what people categorize it. we].7., I think it's an irrational plan is where we are this morn5,ng. W2ko cares? It's a plan. When you look at the faotors there on the Olan, you heard the evtdence. TYie hefendaat goes over there. wo heard through the testimony that the Dotendant said, "I go over ther+a. I announoe I'm here at 7:30, and no ahe knows L'tn there. I peek dDwrn, and there's somebody with Martha. hoes he explode right there? No, doesn't explode right there. He lea,aes, and ho makes sure when he leaves that nobody knows he's there. That it's over about five hours later, he comes back, He comes back fi.ve hours later, and it's interestS.ng, he parks the car in the back. He walks in the house, and then we have a oonfiict of, waii, why did he come back? Ahd Mr. Greer thi.e morning said to you this scei:ario, we1J.., what Larry Gapen did was he wanted to wait until thSs gentisman 1,ett. :snd then he was soing to go over and ta7.k to M4rtha. Is that in eviderioe7 Did you bear that come from the witness staud7 You COURT OF COMMON PLS1t8 : MOAII'GUMSRY COUNTY, c?H#t7 3773 Rebuttal Closing Argument - State rely on your own reaolleoti4n because the State doesn't recall any of that evideAcd coming in. You didn't hoar that evidence. You rely on your own recollection of what the evidance was. Mark &s1Yer, when he testified about this tool, let's just nip this in the bud. There was a specific question asked by the deteatives af the Defendant. Was the tool there, and the answer from the Defendant was, no,.he brought it from hie house to there. And what did Daniel tell you? Daniel said that tool, that maul, wasn't there. They agn 3,mply it but that's not what the evidence shows. Now, why would you- You see your ex-wife w3.th somebodY. you leave,' you come back and when you Aome back, you ring the door bell. No. Do you knock on the dovr? rto. You come back in the house through an unlocked door at 52:30, when everylbody's in bed. Do you announce why you're there? xo. And he's got this. He's got this with him. He's not there to play pir,oahle with him. He shows up there with this thing to ki11, to kill. A,nd that's oxact3.y what he c4ons. Exactly what he does. And it's intaresting dn prior oalouiation and design because here's a qugstion if you really want to know what Is go9,ng on in his mind, there's a question COURT OF COMMON PLEAS 4 MONTGOMERY COUN'rY, OHIO 3774 Rebuttal Closing Argument - State dSked, why not Daniel? .A.nd do you remember the answer, ah+ with a big eera3y.e, "He doesxi't know how lucky he was" because he was next. You want a pian7 When you bring an Instrument like this over at 12:80 at night while people are asleep, unannounced, and you walk downstairs where they're laying there asleep with their eyes closed and you whack them over the head, that's a a p1etn. You know,, thitak about it. it's not a good plan. if Jes ica didn't wake up aod Da,niu2 didn't wake up, who knows whpt would have happened? It's interesting, Now, let's talk about Jesica beoauae after the Defendant has seen what he could do with this, what does he do? He already see- He sees the results of what this could do on a human Yreing, and he 'Oo8s up, not one flights two g13.Pubs of steps, and he walks in where 3esica's laying i.n bed aSleep, 13 years old, and he takes this' to her. Then he s4ys, I didn't ha.ve A plaari. Ax►d on the aggravated murders that are baSed on those underlying felonies, the agg. mur&er based on the aggaCavated burglary, the rap®, and the aggravated robbery, aggrdvated k+urglary, and the rape, a couple things to keep in mind when you listen to the instructions is that the person raped dodsn't have to COUltT oF COMNtON PF,8A8 : MDNT60MBitY COTJNTIt, OHIO 3775 Rebuttal Closing Argtiment - 8tat8 be the person k1I.J.sd. The persori that gets robbed doesn't have to be the person killed, and it's not necessary that the underlying fe7.onq be oommitted against that particular daosased. P,rp these kil.lings assoCiated with, are theso purposeful killings, aosooiatad with these underlying falonl!as? They happened in the sama house. They happened at or about aii the sama t3ane. Theq happened on tho same vl,stt the De#eridant d3.d. xhay were a1l kil],ed by hint about the same time with the same wes.pon. TheY're assoG3,ated with hi,m. That's all the Stata has to provq i,f You follow the itstructions provided. Let's talk about some more of these issues like the rape. Was there penetratioxt of Martha, either vaglnala.y or anally? That's the issue. Penetration, hovrgveu slight. Reop in mind that ejaculation is not necessary, and do You rsmember what the doctor tast5.fied to about injury? That if there is no injury in the vag9.na or in the anal cav5,tir, that doesn't tusEtn there was no penetration, doesn't mean there. was any penatFation. Xou know you don't reward paoQXa for not leaving inJuries. And what is the evideaae here? Well, you got the DNA evidence of the Defendant's DNA found in the reotal swab of Martha Hadevrall, and you heard the COURT ar CDMMpN PLRA$ : bSOI+1'PCpMRX CoUN'T7Ct Q1iI4 3976 Rebutta7. Closing Argument - State doctor testify he put thn gwab ttt two lnahes, and he talked about that. Ana that Is Poverfu7,, powerful, power#ttl evidence in and of 9,tself, but you know what, that evidence is not in a vacuum because there's more awlde:ace thao that. xhere were three peoFle in that room at that t.ima, three people. fte T:efendant killed two of them. That leaves him. That leaves him. You kriow what, he's a w9.tt[oss. He's the best witness for what he dld. MR. C#REsIt: I'm goiog to have to object to this. xHE COURT; Sustained. Don't go there. MR. DAIL1ONN t What does he say? what does he say? M. GRBMM: csbj eat ion. THE q4t1R?: Sustained. 92. DAIbONE : Tn the statemeht to Detective Salye7r, what does ltp say about the aea[ual thiXig that orsCtirred? He aaYs, "E had sex with Martha." He doesin't sap, I gja.deilated on her. I ma:sturbated on her. Iie sAys, "2 had $ex with Martha." Now, when yau have a bunch of middle aged man sitting artlund, do you' expealG them to say, I had vaginal.intercourse with Martha, I had anal intercourse with Martha? He saifl, "I had $ox with COURT OF COMMON P'LLAS : MPNTOpldNR'Y CfJDNTY, 4HX0 3777 Rebuttal closing Argument - St$te MartBta,'' and you aoTAp3.e that with the scientific erridence foUnd in the case. But, you khow, that's not all. Ww., he might have sealed Martha's lips by killing her, but we got the physical evidence of her body, and when you look at her bqdy, s;ae wasn't found fully.olotkted sitting on the kitchen table. How was she found? Sho was found with her clothes-- She was nude except for her shirt pulled up and her bra pulled up, and remember what the Corolner o4id7 The bra was broken. The oup§ were pulled up. And bez pdsiti.on, laY'ing naked with her legs sprqad, and it's interesting, her shorts are off, h®r panttes are o#f, 7.aaving acscess to her vaginal or arnal cavity, end th,e position she is with her legs spread give access to her vagina.l or anal cavity. So you got POA, ydu got the Def$zidttnt's statements to the pp].ica, qnd you got the position of her body along with how her body was clothed, but you got more than tha,t; you got more than that. When asked by t3ie detectives did you leave her that way? He's real prnud. qb, yeah, I left her that way, You 'Knowr ha comes down, and he sees Martha with Nathan, and, you know, the Defandant's going to be the 3,ast man in her life. He's not going to xot Nathatn, if there was sex, be the last masi in her life. COURT OF C1yMM0I4 P&EAFS : MONTGOMERY CQI1N'1'Y, OHIO 3778 Rebuttal Closing Argument - State That's the ultiteate control. You kill ber and you rtiol8ta t}er bY intercourse. That's the ultimate control. And, iust thitk, he takes time ou# to dd that 4 before, 4ccc+rdirtg to his statement, he goes up and 5 kills Jesi.oa. 6 Then we bear about that thes Detendaut ts one 7 of us. He's an ordinary man, one of us. Well, thin)c, 8 I don't know how many people you would €iad that woUld 9 kill three people over a breakup of a marriage but thzs t0 iistend.ant is certainly not one of us. 11 Then wg hear he's a ooaah. That's not a 12 defense to what happetkad. He's a nice guy. That's not as a de#alnse to what happened. He's in dePat. That's not 14 a+ie#ensq to what happened. The Defendant's not ths i8 vict3,m hora, not the victim. You kaxow, life is hard ].6 and life is full of di,eappoi.ntments, and marriages 17 break up, but it's responsibility. It's taking 18 rasponsibilitY Und$r the luw for your actions. That's 19 what this case Is about. it's not about whether or not 20 we had this triaogle o€ what happened or why vr 21 whatever. You follow the Court's i,nstructionm, As a 22 tl►atter o€ fact, i€' yau tklxt$r about going to the Ohio 23 state, gpa.ng here qoing thgre, wbo aares7 Who cares? 24 It's not an excuse.Lor committing asgravated murder. 25 And thsn I guess ofte of last th3ngs that we COtfIiT Or COMMON PL8A8 : MO#sTt30Alk1tY OU?Ih'Y, OHIO 37'79 InstruationB to the J'ury 1 heard frtlm Mr. 6reer was that when the Aefemdant got 2 arrested, his sole concern was for Brpok4 and Sillir. 3 That's why he asked about them. Well, it he was so 4 corlaernecl about thala, then why did he ki11 their 5 mother? Why did he kill their sister? It :aakes no 6 sense. He's trying to get same Coxtcern then. Then the 7 Defendant is aalled kind and honorabla. The Defendant 6 killed, aggravated murder, three human bein.$s, cornsaitted aggravated burglary, rape, and aggravated xU robbery. That is not the definition of a kind and 11 honorable man. xhank you. 12 (At 2:40 p.m., a bxief bench conferenoe 13 is had off the record out of tho heariAg oP the jury, 14 and the following is within the preseYsae and hearfing of zS the jury; Deferidaint and al7. C+nurr,eel, present:) 16 IN OPEN (TqCtAT: 17 Ladies and goAtJ.eimon of the jury, we are is going to be commendingt%fa.na1 nt9uments(si,a). If you'd 19 like to stand up and stretch for a couple of m#nutes 20 rigbt where you aret that wou].d be fine right now, and 21 thOA i'm gaing ta start bscause I'm going tp stand up 22 and sxretch. 23 (Svsrybodx standing and stratahir►g. ) 24 Be seated.. 25 TINSTaUCTil7N8 To Tim 31)PY COt1RT 0F COMMON PLOAS : MDNTc3dPtERY C©IJDIM OHIO Exhibit 8 Opening Statements -- Mitigation Phase (Transcript pages 3972-3983) 3972 Opening Statement - State OPENING STATEMENT BY MS. HQBSON: Thank you, Your Honor. Your Honor, counsel, ladies and gentlemen of the jury, good morning to you. You have now entered the sentencing phase of this trial and as the Judge has already told you, this phase deals only with the determination of sentence. As the trier of the facts, you have already determined that the Defendant was guilty of certain aggravated circumstances specifications existing at the time.. Those same aggravating circumstances specifications will now be addressed, only now we will simply call them aggravating circumstances, and you determined that there were five. Your duty is not over yet. You must continue with your function in the sentencing phase to determine whether or not the aggravating circumstances of this case outweigh any mitigation that the defense may present beyond a reasonable doubt. You must now channel all your efforts and all your energy into this weighing process. Now, the Judge has told you what mitigating factors are. In considering what weight you should give to 23 mitigating factors, you have to remember that quality, 24 quality, is what must be considered when you're talking 25 about the aggravating circumstances and mitigating COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 3973 Opening Statement - State factors. The quality of the evidence is different than 2 the quantity of the evidence, and you have to make sure 3 that you understand the two. 4 The State of Ohio incorporates by reference 5 all of the testimony, all the of the evidence that you 6 heard, all of the stipulations, and all the exhibits that you had in phase one of the trial. You have 8 already decided that the Defendant is guilty as to each 9 and every aggravating circumstance that was connected 10 with every count of aggravated murder; therefore, as 11 the Judge has already told you, those five aggravating 12 circumstances are the ones that you must weigh against 13 any mitigating factors that the Defense may present, 14 and what are those aggravating circumstances? Here is 15 the chart. You can look at it, and follow along with 16 me. 17 One, that the Defendant purposely killed 18 Nathan Marshall, Martha Madewell, and Jesica Young 19 while he was under detention or while he was at large 20 after having broken detention. 21 Number two, that the Defendant purposely 22 killed Nathan Marshall, Martha Madewell and Jesica 23 Young during a course of conduct involving the 24 purposeful killing of two or more persons. 25 Number three, that the Defendant was the COURT OF COMMON PLEAS : MONTGOMERY COUNTY, 0HI0 3974 Opening Statement - State 1 principal offender in the aggravated murders of Nathan 2 Marshall, Martha Madewell and Jesica Young, and that 3 the aggravated murders were committed while the 4 Defendant was committing, attempting to commit, or in fleeing immediately after committing or attempting to commit aggravated burglary. Four, that the Defendant was the principal offender in the aggravated murders of Nathan Marshall, Martha Madewell and Jesica Young, and that the aggravated murders were committed while the Defendant 11 was committing, attempting to commit, or in fleeing 12 immediately after committing or attempting a rape. 13 And five, that.the Defendant was the principal 14 offender in the aggravated murders of Nathan Marshall, 15 Martha Madewell, and Jesica Young and that the 16 aggravated murders were committed while the Defendant 17 was committing, attempting to commit, or in fleeing 18 immediately after committing or a attempting to commit 19 aggravated robbery. 20 Now, again it is not necessary for the State 21 of Ohio to present evidence on these five aggravating 22 circumstances. You yourselves have found the Defendant 23 guilty of twelve counts of aggravated murder concerning 24 the death of Nathan Marshall, Martha Madewell, and 25 Jesica Young. Each of those twelve counts of COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 3975 Opening Statement - State 1 aggravated murder have the five aggravating 2 circumstances that I just went over with you, and only 3 those aggravating circumstances related to any one 4 count of aggravating murder may be considered and 5 weighed against the mitigating factors that the 6 Defendant may present in determining the penalty for 7 that individual count. 8 The penalty for each aggravated murder must be 9 determined separately by you. You must examine each 10 aggravating circumstance as it relates to each count of 11 aggravated murder concerning Nathan Marshall. 12 You must examine each aggravating circumstance 13 as it relates to each count of aggravated murder 14 concerning Martha Madewell. You must examine each count or each aggravating circumstances as it relates to each count of aggravated murder as it relate to Jesica Young. In weighing the aggravating circumstances against any mitigating factors, you must not be swayed by emotion, bias, sympathy or prejudice for or against the Defendant. You must use your intellect and your common sense to assist you in that weighing process. 23 Each of you must determine what the evidence 24 establishes beyond a reasonable doubt. You must 25 determine whether the evidence establishes beyond a COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 3976 Opening Statement - State 1 reasonable doubt that the aggravating circumstances in 2 this case are more important or more significant than 3 any mitigating factors that you hear concerning the 4 Defendant. 5 The State submits to you that after you have 6 thoroughly and separately reviewed each and every aggravating circumstance of each count of aggravated murder and weighed it against any mitigating factors offered by the Defendant, you will find that the State of Ohio has proven to you beyond a reasonable doubt that those aggravating circumstances outweigh any mitigating factors. You will find that each of these five aggravating circumstances attach to each of the four counts of aggravated murder relating to Nathan Marshall outweigh beyond a reasonable doubt any 16 mitigating factors offered by the Defendant. And you 17 will also find that those findings concerning Nathan 18 Marshall are separate and distinct from any findings 19 that you will be making on Martha Madewell and Jesica 20 Young. 21 You will find that each of these five 22 aggravating circumstances attached to each of the four 23 counts of aggravated murder relating to Martha Madewell 24 outweigh any mitigation that will be offered by the 25 Defendant, you will also find that those findings that COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 3977 Opening Statement - State 1 you make concerning Martha Madewell are separate and 2 distinct from the findings you will make concerntng Nathan Marshall and Jesica Young. You will find that all five of the aggravating circumstances attached to the four counts of aggravated murder relating to Jesica Young outweigh beyond a reasonable doubt any mitigating factors offered by the Defendant. And, again, ladies and gentlemen, those findings about Jesica Young are going to be separate and distinct from any other findings that you have made concerning Nathan Marshall or Martha Madewell. And it will be a finding of death, not only on each of the victims, Nathan Marshall, Martha Madewell and Jesica Young, but on each and every count, each and every count, of aggravated murder and it's a total of twelve. Ladies and gentlemen, at the end of our case, the State will ask each and every one of you to return twelve separate verdicts recommending death of the Defendant. Why? Not because of passion, not because of sympathy, and not because of emotion. We will be 22 asking you to return the verdict of death because the 23 aggravating circumstances truly outweigh any mitigation 24 in this case. And once you make that determination, it 25 is your duty to return a verdict of death on all twelve COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 3978 Opening Statement - Defense counts of aggravated murder. Thank you. THE COURT: Mr. Cnx? MR. COX: Thank you, Your Honor. OPENING STATEMENT BY Mlt. COX: Ladies and gentlemen of the jury, I didn't put up a chart. You know what this case is about since you were selected some five weeks ago. The bottom line is called the mitigating factors. The Judge spells those out to you. Mitigating factors is anything that diminishes the death sentence. That's what mitigating factors are. Tt's anything that diminishes a death sentence, and each of you individually are empowered with the authority by this State to determine what a mitigating factor is in following the law that the Judge gives to you. Each of you have to make that decision. Some of you may believe that some of the things that you hear are mitigating factors or a factor. Some of the fellow jurors may disagree. I don't believe that's a mitigating factor. But each of 21 you have to make that decision. The statute is very 22 broad, and you're going to hear a lot of things. 23 You're going to hear from the community, outstanding 24 citizens in the community are going to come in here, 25 and you're going to hear them today and tomorrow, etc.. COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 3979 Opening Statement - Defense You're going to hear Larry's family, his mother, his children, his brother and sisters. You're going to hear the life of Larry Gapen because that's what it's all about. That's what it's all about. That's what 5 these mitigating factors that you're going to be 6 hearing is the life, August of 1948, all the way up to the incidents that you are here about. 8 You're going to hear that Larry has been a model citizen his entire life, 52 years. He turns 53 in August. He has been a model citizen during his entire life, which like most of you, I'm sure, have been that way. Larry moved to Ohio when he was six years of age out of Pennsylvania, his mom and dad and his siblings at that time. He grew up in Town View out in Trotwood. He was a paper boy, had over a hundred customers back in the fifties. Some of the older members of the jury can remember the fifties before times began to change the way they are today. He grew up in the Trotwood School system, graduated from high school. Married his high school sweetheart a couple months after he graduated, I believe in '66. 22 His first child came along, not nine months 23 later but a few months later, as people we know. His 24 first child, Holly, was born in December of '66. That 25 was his first child. Unfortunately, you heard before,. COURT OF COMMON PLEAS : MONTGOMEIZY COUNTY, OHIO 3980 Opening Statement - Defense that marriage failed and a divorce occurred and married his second wife, and had two children, and you heard them in the first phase, Charity and Jimmy. And unfortunately, that failed. He worked hard. He worked in high school. He worked at the IGA Market out there on North Gettysburg when he was back in high school. Carried papers in his earlier years. He worked at the Lawson Milk Store. He worked at Liberal Markets, just a young man struggling like all of us have in the past. Like David Greer told you, the conduct that you are here about is not the Larry Gapen of the fifty- 12 two prior years. You were told before he's one of us. 13 He's not a monster. He's just a human being. You're 14 going to hear that, you're going to hear all of those 15 things from the people who know him best, and you're 16 going to hear about the turmoil relationship that you 17 heard before, trying to make things work. That's what 18 you'll hear about. Ladies and gentlemen of the jury, 19 you said when you were selected for this job and you 20 know at some point you may be in this phase, and you 21 accepted that responsibility, and you took an oath to 22 carry it out, and each of you are empowered by the 23 legislature of this state to listen to all this. The 24 Government has to prove-- And basically what 25 mitigating factor or factors are besides certain ones COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 3981 Opening Statement - Defense which are spelled out in definition is just anything that diminishes the sentence less than death so it's extremely important that you pay attention to all of these people, listen to who can tell you the story of 5 Larry Gapen, and you can get some answers hopefully to 6 assist you in making the appropriate decision in this 7 case. 8 Today, tomorrow, the next day, I think it will 9 be extremely difficult for every one in the courtroom, 10 but I'm confident that after you hear the life of Larry 11 Gapen, an individual that as far as traffic offense, no 12 prior criminal history whatsoever. Hard working all 13 his life, you're going to hear that he worked at the 7- 14 Up Bottling Company for about four years. He worked 15 at the Pepsi-Cola Bottling Company for 21 and a half 16 years before he went to the employment that you have 17 heard about previously in detail. He worked 6 and 7 18 days a week, 70 hours a week, throwing those cases of 19 pop, stacking up, practically every place that sells 20 Pepsi-Cola of any type within fifty miles of Dayton. 21 He's been in and out all the carryouts and the grocery 22 stores. That was Larry Gapen. He tried to get the 23 American dream. He's out on Deer Bluff. In his last 24 marriage, tried to take his two, Martha's four, three 25 really at the time because Charity and his two and the COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 3982 Opening Statement - Defense 1 four and put them together and make it work, and in the 2 third attempt to make a marriage because unfortunately 3 that's what a divorce is or a dissolution, it's a failure in life, and some of you may have experienced that failure. Larry Gapen experienced it three times. Larry Gapen couldn't let go. He loved Martha with all his heart. He loves Martha with all his heart today. No one is offering-- Mitigation is not excuses. Tell you right up front and right off. There is no such thing as an excuse for what you are here 11 about, for what ultimately happened in September. 12 There's no excuse for that. It's to let you know, to 13 let you know what Larry Gapen is like, what he's done 14 in the past. You're going to hear from a doctor and 15 the doctor did psychological testing and profile of 16 Larry Gapen, that he's perfectly normal. Within the 17 framework of testing by the doctors, he is normal. 18 You're going to hear that Larry Gapen for 52 19 years until the summer of last year was just as law 20 abiding as any one that you would ever come in contact 21 with. The emotions, his love for Billy, his love for 22 Martha, his desperate attempt to keep the family 23 together to make things work, worked the hours, buy 24 whatever was necessary to get into the financial stress 25 and as the stress built, the drinking increased and the COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 3983 Opening Statement - Defense tension was there in a volatile relationship between him and Martha continued until we get to the situation that brought us here. I'm sure that if you listen carefully to his life that there is enough mitigating factors in this particular case that when you go back to deliberate that you will find that the aggravating circumstances do not outweigh the mitigating factors and that you can sign a verdict form for something less than the sentence of death, which is so final. Thank you. MS. HOBSON: Your Honor, on behalf of the 12 State, the State would move to incorporate by reference 13 all the testimony and all the stipulations and all the 14 exhibits that were admitted during the first phase of 15 the trial into this phase. THE COURT: The record has been made. MR. GREER: Record has already been made. THE COURT: It will be so ordered. MR. GREER: We'll call Dr. Smith. DR. ROBERT SMITH, Called as a witness by the Defense, being first duly sworn, is examined and testifies as follows: 23 DIRECT EXAMINATION 24 BY MR. GREER: 25 11 Q Could you state your name for us, sir7 COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO Exhibit 9 Closing Arguments -- Mitigation Phase (Transcript pages 4212-4246) 4212 Closing Argument - State THE COURT: Anything further? .MR. DAIDONE: Not at this time. THE COURT: ' Very well. We're in recess. (A brief recess is taken at 9:45, and the the following proceedings are had at 10:15 a.m. within the presence and hearing of the jury; Defendant and all 7 counsel present:) 8 IN OPEWCOURT: 9 THE COURT: Anything further from the State? MR. DAIDONE: None, Your Honor. THE COURT: Very well. Ladies and gentlemen of the jury, we have now reached the point of final arguments in this part of the sentencing phase of the case. As with the opening statements, the final arguments of counsel are designed to assist you, but they are not evidence. Listen carefully to what they're saying. Arguments of counsel are not evidence in this case, the law permits you to consider the arguments of Counsel to extent they are relevant to the sentence that should be imposed on Larry James Gapen. 22 Commencing with the State of Ohio. 23 MS. BALLARD: Thank you, Your Honor. 24 CLOSING ARGUMENT 25 BY MS. BALLARD: COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 4213 Closing Argument - State 1 May it please the Court, Counsel, Miss Robson, 2 Mr. Daidone, Detective Dunsky, ladies and gentlemen of 3 the jury, it's been a long haul, and you've finally 4 reached the last days in these proceedings, the phase where you decide whether the Defendant will be sentenced to death for the aggravated murders of his ex-wife, Martha Madewell, his ex-wife's companion, Nathan Marshall, and his step-child, Jesica Young. Now you have already heard the tests for how you determine that. If you find that the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt, your verdict must be death. What does that mean? Well, you have heard what those aggravating circumstances are, and we're going to go over them in a 16 minute. But that means that your job is twofold. 17 First you must determine what those aggravating 18 circumstances and mitigating factors are. The 19 aggravating circumstances that you have.already found 20 to exist beyond a reasonable doubt, and you must weigh 21 them against the mitigating factors that you find have 22 been presented here. And then you must determine if 23 those aggravating circumstances outweigh those 24 mitigating factors or if the aggravating circumstances 25 are more significant than or more important than the COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 4214 Closing Argument - State mitigating factors. That's what it means when you say outweigh, and that is your job here. Now, you need to understand from the very outset that you must examine each and every count of aggravated murder separately in order to determine the penalty for each and every count of aggravated murder. So that means you must analyze the five aggravating circumstances attached to each and every count of aggravated murder separate and apart from all the other 11 counts of aggravated murder, totalling 12 counts of aggravated murder, 12 separate penalties for each of those counts. And you know what they are. You know because you found the Defendant guilty beyond a reasonable doubt of the aggravated murder of Jesica Young with prior calculation.and design. And you found the Defendant guilty beyond a reasonable doubt of the aggravated murder of Jesica Young based upon those underlying felonies, aggravated burglary, rape, and aggravated robbery. That's four counts of aggravated murder for each victim because you found the exact same four counts concerning the purposeful killings of Martha Madeweil and Nathan Marshall, three victims, four counts of aggravated murder per victim for a total of 12 counts of aggravated murder that you're going to 25 be deciding the penalty on, and within each and every COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 4215 Closing Argment - State 1 one of those 12 counts of aggravated murder are the 2 five aggravating circumstances. And you know what those are. You found the Defendant guilty beyond a reasonable doubt of committing the first aggravated circumstance, of committing the purposeful killings of Nathan, Martha and Jesica while he was under detention. The second, that each aggravated murder was part of a course of conduct involving the purposeful 9 killing of two or more people, in this case three 10 people, and the third, fourth, and fifth aggravating 11 circumstances that you found beyond a reasonable doubt 12 is that the Defendant was the principal offender in 13 each aggravated murder while committing or attempting 14 to commit or fleeing immediately after committing or 15 attempting to commit aggravated burglary, rape, and 16 aggravated robbery. Those are the five aggravating 17 circumstances that you're going to be looking at for 18 each and every count of aggravated murder and five 19 aggravating circumstances that you're going to weigh 20 against any mitigation. 21 And, remember, this isn't a numbers game. 22 It's not the number. It's the quality. So you can 23 find the Defendant guilty and sentence him to death if 24 you find that even one of those aggravating 25 circumstances outweighs the mitigation beyond a COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 4216 Closing Argument - State 1 reasonable doubt. So what's the test? You have heard it. What are the aggravating circumstances? You have heard them. What do you compare it against? Mitigation. What is mitigation? What are mitigating factors? They're factors that lessen the Defendant's moral 7 culpability. They're factors that diminish the 8 appropriateness of the death penalty, and the Defense 9 is going to ask that you consider two factors in 10 particular in mitigation of the death sentence. The 11 fact that the Defendant has no significant prior 12 criminal record and the history background and 13 character of the Defendant. Let's start with the first 14 one. 15 Yup, the Defendant doesn't have a criminal 16 record, does not have a significant prior criminal 17 record, and we never said he did. But we submit to 18 you, ladies and gentlemen, that does not mitigate the 19 sentence of death. We don't expect people to have 20 criminal records when they come from warm and loving 21 homes as the Defendant's mother testified, and we don't 22 expect people to have criminal records when they suffer 23 no trauma as testified by the doctor and as indicated 24 by his testing of the Defendant. Remember, you decide 25 what's mitigation and mitigation and how much weight to COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 4217 Closing Argument - State give it. You decide, and Just because something has been presented as mitigatiqn doesn't mean that you must find it's a mitigating factor. And just because it's been presented as a mitigating factor doesn't mean that you're told how much weight to give it. You decide how much weight to give it, and we submit to you that the fact that he lacks a significant prior criminal record does not deserve the weight that the Defense is going to make you think that it deserves when weighed against the five aggravating circumstances that the Defendant committed the aggravated murders while under detention, that he committed the aggravated murders of two or more people, that he was the principal offender in committing those aggravated murders while committing an aggravated burglary, rape, and aggravated robbery. And what did we learn about the Defendant's history, background, and character? That he grew up with brothers and sisters in a warm and loving home, that he was married three times, and those marriages didn't work out, that he had three kids and he was a real stand-up guy on and off the field? Oh, and he suffered from no psychological disorder or psychosis, and he suffered from no trauma in his life as shown in the testing as you heard from the doctor but that he 25 was a functioning alcoholic with acute depression which COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 4218 Closing Argument - State even the doctor admitted was not diagnosable. Translation: The Defendant was very sad, according to the doctor. How on earth, ladies and gentlemen, do those lessen the Defendant's moral culpability when you weigh them against all five of those aggravating circumstances? If you learned anything about this Defendant's 8 history, background, and character, you learned that he 9 had what most people want, a family, children, friends, 10 but the Defense wants you to think that Martha caused 11 his drinking problem that Martha and her children 12 caused the problems in the home and the problems in the 13 relationship between Martha and the Defendant, but the 14 bottom line is people choose to drink and adolescents, 15 whether among stepchildren or children, can often be 16 difficult for the child and the parent, and it takes 17 two to make a relationship work or fail. That's the 18 bottom line. 19 You decide whether or not those are mitigating 20 factors and how much weight to give them. And we 21 submit to you that they don't deserve much weight, not 22 when you weigh them against all five of those 23 aggravating circumstances. And that's what you have to 24 do. 25 Now, I'm sure the Defense is going to get up COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 4219 Closing Argument - State here and tell you about some other factors you should consider as mitigation, and when they do, keep one thing in your mind, ask yourselves this: Whatever they're saying to me right now, does it really lessen the Defendant's moral culpability? Because that's how you decide if it's a mitigating factor and ask yourselves this: Does it really lessen the Defendant's moral culpability when you weigh it against the aggravating circumstance that he purposely killed Martha, Nathan and, Jesica while under detention, that he committed purposeful killings of Martha, Nathan, and Jesica, being two or more people, that he committed the 13 purposeful killings of Martha, Nathan, and Jesica, 14 being the principal offender while committing or 15 attempting to commit aggravated burglary, rape and 16 aggravated robbery. Keep that in mind. 17 We are confident, ladies and gentlemen, that 18 when you compare and you weigh the aggravating 19 circumstances and anything that you find in mitigation, 20 that you will reach one conclusion. That the 21 aggravating circumstances do outweigh the mitigating 22 factors beyond a reasonable doubt, and that after you 23 go back in that deliberation room, and you review all 24 the testimony and you compare that to the instructions 25 of law and you apply those instructions of law, that's COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 4220 Closing Argument - State 1 the conclusion you're going to reach. And that you're 2 going to reach that concluSion on each and every count 3 of aggravated murder for each and every one of those 4 three victims. We are confident that after you find beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating factors, that you're going to uphold your sworn duty as jurors to follow the law then in sentencing this Defendant to death. Sentence him to death for each and every count of aggravated murder concerning the purposeful killing of his ex-wife, 12 Martha Madewell. Sentence him to death far each and 13 every count of aggravated murder for the purposeful 14 killing of his ex-wife's companion, Nathan Marshall, 15 and sentence him to death, ladies and gentlemen, for 16 each and every count of aggravated murder for the 17 purposeful killing of his stepchild, Jesica Young. 18 THE COURT: Mr. Greer. 19 MR. GREER: Thank you, Your Honor. 20 CLOSING ARGUMENT 21 BY MR. GREER: 22 Ladies and gentlemen, I'm coming to you with 23 the weight of over half a century of mitigating 24 evidence, 52 years of a life; that's what I bring 25 before you. T am not here to excuse anything. I'm not COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 4221 Closing Argument - Defense here to blame anybody. I'm here to explain. I'm here to try to help you understand. They just asked you to kill somebody. It's your responsibility in this case not to kill this man but to save his life. Now let me try to explain to you why under the law that's your responsibility as jurors. You're good people. We have taken five weeks away from your lives. It's kind of like somebody walks up to you on the 9 street and says, "Are you a good citizen?" and you say yes and the next thing you know, you're on Guadacanal. it's an awful job that we've put you through, and I understand that. And I understand your job's not over and you understand that. I told you before that this case presents sad and terrible facts. The terrible part is over. That was last week. That was last week. That was decided. This issue this week is a different issue. The aggravated murders are not aggravating circumstances. That's confusing but get that straight. The aggravating circumstances here are not the aggravated murders. The penalty for the aggravated murders is life, not death. The issue in this case is over half a century of mitigating evidence versus the circumstances that you found in connection with those aggravated 25 murders. A hard distinction to make perhaps, but it's ti COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 4222 Closing Argument - Defense a lot of differencewhen you talk about weight in a scale. Let's take a look at what your job is here and 4 what it is that you're weighing. You have heard these 5 terms mitigating factors, aggravating circumstances until they just rattle around in your head like marbles, I suppose. But what do they mean, what do they mean? What is your job? What do you have to think about in the jury room? Each one of you, separately, individually, as a human being and the job that you have got here, what do you have to think about? What is this case about? Mitigating factors are any factors, any 14 factors, that diminish the appropriateness of the death 15 sentence. Anything that you find that diminishes the 16 appropriateness of the death sentence in a case of this 17 nature. That is a mitigating factor. It includes, but it isn't limited to and here's a list of six of them on the board. Larry's history, Larry's character, Larry's background, the nature and circumstances of the offense, Larry's lack of significant history of prior criminal convictions and any other factors that you find that weighed in favor of a sentence other than death. 25 Let's think about what you've heard. Even in COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 4223 Closing Argument - Defense the liability side of this case, the witnesses that were called that knew Larry Gapen before September 1S of 2000 had nothing but praise for him, a model for children, Heather Morgan. The witnesses that you heard in this phase where you're supposed to be weighing aggravating circumstances against mitigating factors, you have heard nobody that had an unkind word to say about Larry Gapen, have you? Not a one. Both sides have the right to call witnesses. No one has said an unkind word about this man as far as the 52 years of his life before September 18. Think of that. Think what-- How would you like to have a 13 parade of witnesses talk about the good and the 14 negative and positive and the evil in your life over 15 the last fifty years? Think.you could end up with that 16 kind of thing, witnesses? Have you ever heard of a murder case where among the witnesses in favor of the Defendant were a man who has been a policeman, Police Chief, for 21 years, a man who has been a member of City Council, a man who is currently an acting Police Chief at Huber Heights? That's the people that came in here and testified about Larry's history, his character, and his 24 background. You've seen his family. They're sitting 25 right here. They're beautiful people. They're all COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 4224 Closing Argument - Defense grown up. You know, life is not a technicolor movie. It's not a cartoon, it's not a true romance. It's a tough road for all of us. People do the best they can. These are good people. Larry had a good family. Larry was a good person. Larry tried to realize the American dream, and the dream shattered. The terrible part of this case is gone, but we're right in the middle of the sad part of this case. As these witness's testified to you in the last the day and a half, I jotted down as they were testifying how they described the man that these people want to kill. They described him as a hard worker, was 13 a hard worker. That's mitigation. They described him 14 as a good humored man, as a good natured man, and the 15 other phrase was cool, calm, and collected, a man who 16 shied away from argument, a man who enjoyed having fun, 17 a man who was fun to be around, a man who was 18 compassionate toward kids, a man who was supportive, a 19 man whom they'd never heard yell in anger. They 20 described him as a peacemaker. They described him-- 21 Do you think these people were lying, or do you think 22 they were telling the truth? If they were lying, 23 somebody could have come in and said, "That's a bunch 24 of baloney. That's not so." These are good people, 25 family and acquaintances, responsible people in their COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 4225 Closing Argument - Defense community. This is the man that they knew albeit, it's not the man from the night or early morning of September 18, but this is the man that existed in this community for 52 years of his life. What else did they say? One witness said he was respected by everyone. He's lost that. Likable, everyone's friend, always had a hello, happy, cheerful, a little different than the way he is today. putgoing, gregarious. They said he never met a stranger. He was an organizer, a mediator, he was described by one. He was described as non-confrontational, congenial, children love him. Jennifer Gray, who is sitting back 13 there, described him as an outstanding man. Said 14 children looked up to him. Never heard an unkind word 15 about him. What do you know, when you stop to think of 16 it, if we were to cut everything you have heard off as 17 of the bell at midnight on September 17, 2000, you have 18 never heard it, you have never heard it, any witness, 19 say an unkind word about Larry Gapen; 52 years, 20 history, character, background. That's the man they ask 21 you to kill. 22 The other witness said he's there for you, 23 happy-go-lucky, easy going guy. Described by his 24 younger brother as a father figure, and indeed from 25 what you have heard, he was a father figure, not only COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 4226 Closing Argument - Defense to his own children, but perhaps to hundreds of other children in this Huber Heights Football program, a guy who got along with everybody. Everybody liked him. That's what the witnesses have all said, and there's been no contradiction of any of that. That's 52 years of this man's life. That's part of the weight that Mr. Cox and I have to bring into this courtroom for you to consider. And the law says you're supposed to consider that. That's the weight of mitigation. The law says as mitigation, you can also consider the nature and circumstances of the offense, and don't confuse that. The aggravated murders are not on the scale. Don't put 14 those things on the scale or you violate your oath as 15 jurors. The aggravated murders are not on the scale, 16 but you can consider the nature and the circumstances 17 of the offense insofar as it's mitigation. FTow do you consider that in this context? we aren't here in a vacuum tube. We're here with your common experience, with your knowledge of life, your knowledge of the world. This was a crime of passion. There's no question about that;. however, you define it. This is not some guy sitting in a shack in Montana dreaming of destroying society and sending bombs to 25 whoever he can find an address for. This is not COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 4227 Closing Argument - Defense somebody blowing up a building in Oklahoma City. This is not somebody who just got some craziness once a month finding somebody in a city and kills them and then goes go to another city and kills somebody else, and that sort of thing. This is not a hit man for the Mafia who kills people for hire. This is not that kind of a case. Maybe in that kind of a case, the death penalty makes sense, but in this kind of case, when you consider the nature and circumstances of what we're talking about here, it makes no sense in a crime of passion to invoke the death penalty, I submit to you. You have to consider the mitigating aspects of the offense. We had a psychologist examine Larry so that you could find out whatever it is that is his 16 psychological makeup, his personality traits, that sort 17 of thing, and no one has challenged Dr. Smith's 18 findings, and Larry is, as I told you at the outset, 19 Larry is one of us. He's a perfectly normal man. He 20 had personality traits that perhaps made his breaking 21 point come sooner than it might in some other man, but 22 he's a perfectly normal man who reached the breaking 23 point, committed a terrible crime, crime of passion. 24 But that's different from the kind of nature and 25 circumstances offense of somebody who is a killer for COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 4228 Closing Argument - Defense hire or who is out to destroy society. This man has no sociopathic tendencies. He has no psychological psychiatric maladies. He's not a threat to society. He's going to be a good prisoner because that's what he has to be. He's not a threat to anybody anywhere. Another important mitigating factor is lack of a prior history of any criminal convictions, and Larry has gotten through 52 years of his life as a good citizenship. That doesn't count for anything? They want to erase all that? That's weight on the scale. The law also says in addition to all those things that we have talked about, other mitigating 14 factors that you have to place in the scale are any 15 other factors that weigh in favor of a sentence other 16 than death, any other factors that weigh in favor of a 17 sentence other than death. 18 What about Jimmy; what about Charity? 19 Father's Day was last Sunday. Isn't it a factor that 20 why should you kill their father? Does that help 21 anything? Does that solve anything, or does that 22 simply make things worse? Any factor that weighs in 23 favor of a sentence other than death. You have a right 24 to consider all of that. 25 Part of that would be what you learned from COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 4230 Closing Argument - Defense 1 is in itself is not an aggravating circumstance. 2 That's last week. The murders don't get on the scale this week. There's weight to those murders, I grant you that, but the legislature covers that weight with the sentence of life in prison. Is that like a picnic in the park or something? That's the sentence for aggravated murder. And you will have the responsibility of imposing that sentence and Larry has earned that sentence and he's responsible for that and that's fine. But don't, don't step aside from your responsibilities and put that on the scale this week when we're talking about a human being's life. Because the law doesn't put it there, and you can't either. Fair enough? That's what we're here for. Aggravated murder itself is not an aggravated circumstances you may consider only and there are the five things you found. 18 Now if you divorce those, as you have to, from the 19 murders with which they were associated, what kind of 20 weight do we have? First we have got the breaking 21 detention, and there's no question he broke detention, 22 and you found that he had--no question about it-- 23 beyond a reasonable doubt, but what kind of weight does 24 that have as an aggravating circumstance? 25 Who was his accomplice in breaking detention? COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 4231 Closing Argument - Defense Who was over in his house as soon as he got home with the electronic home monitor? Martha, the one who got him the detention. There again, I'm not blaming or praising anybody, but when you consider whether that puts weight on the scale as an aggravating circumstance as opposed to the murder, which is not in the picture 7 here, hey, it really doesn't have much weight. S Two or more persons. This isn't serial 9 killing where you kill somebody this week and then go to another town and kill somebody the next week and then go to another town and kill somebody the next week. This is one explosive episode, totally irrational, a crime of passion, and that I submit to you does not deserve great weight. The weight here lies in the aggravated murders. They were terrible murders, there's no question about that. But that's not the issue, it's the circumstances, and the circumstances don't have much weight in and of themselves. Next circumstance was the burglary. Yes, he came into the home, but the door was always open to him. Daniel wasn't surprised to see him there in the middle of the night, and his picture's on the bed stead. That plays at least into what kind of weight 25 his coming into that house that night and trespassing COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 4232 Closing Argument - Defense has in the scale here of an aggravating circumstance. The crimes are heavy, but they're not part of what you're to consider in this phase of the case. Walking into the house where your picture is next to the head of the bed, I submit, isn't the right thing to do. You did the right thing, you found what you found, but as 7 far as weight as an aggravating circumstance, I just 8 don't see that it amounts to much. 9 The attempted rape, we have got an irrational 10 thing going on here. Larry told you today how much he 11 loved and still loves Martha. This is a crazy crime of 12 passion that he doesn't understand. It's hard for 13 anybody to try to understand, but as far as weight in 14 the scale, what does that really add? 15 The aggravated robbery is the fifth of these 16 circumstances that you're to consider. Weight oil the 17 scale? Walks out of the house, picks up Martha's purse 18 to take it with him. It's the one with the little note 19 from the cat in it. Again, sure, it's criminal 20 conduct, but it's so secondary to what the real issue 21 is here, those awful murders, how does taking Martha's 22 purse add any weight to the other side of the scale 23 compared to the 52 years as a decent, hard working, 24 loving guy that tried to be a good citizen, tried to be 25 a good husband, tried to be a good father, tried to do COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 4233 Closing Argument - Defense the right thing. I submit to you that if you do the weighing process as the law suggests and you don't put the lead weight of the crimes on the scale, the scale doesn't 5 even quiver. Mitigation so far outweighs the alleged 6 aggravating circumstances, that the case shouldn't take but a moment to decide that the death penalty is not 8 the penalty in this case. Save it for a case where it 9 may belong, where you have got the madman against 10 society or the serial killer or and the hit man or 11 something like that. A crime of passion like this by a 12 man who is a good man, good family, tried to be a good 13 father, tried to be a good citizen, tried do everything 14 he was supposed to do and, in fact, did it for 52 15 years. This is not that kind of a case. I submit to you that the legal penalty in a case like this is not loss of life. It's loss of living. And what does that mean? You heard Larry today talk about all the things that were important to him on the morning when he got up on September 17. Lot of it was his family, lot of it was Martha. Those things are over for him. You have got four options here. Aside from the death option, you have got three life options. One of those is life in prison without ever any possibility COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 4234 Closing Argument - Defense 1 of parole. He'll never see Huber Heights again. If he 2 ever sees Jimmy and Charity and Billy or anybodyelse, 3 it'll be visitation at a penitentiary. He will never 4 see any kid's team play football again. He will spend every day of the rest of his life with those same thoughts that he spent the nine months since he's been in jail toiling with and troubled with. He still loves Martha. Martha is gone. Why did he do what he did? Why didn't he open the door and walk away? It's too late. We can't bring people to life in this world. It doesn't work that way. All we can do is not put people 12 to death. Every day, if you choose that option of life 13 without parole, every day of Larry's life in a cell, 14 and he's got to relive all that he's lost. He had 52 15 years that were good years. You have heard about them 16 all. They're gone. His liberty is gone. And, you 17 know, after he committed these murders, within hours 18 after that, he's sitting down with the Detectives, he's 19 confessing the whole thing to them, and he told them at 20 that point that he knew his liberty was gone. It's 21 something he's going to have to deal with. He's been 22 dealing with it for nine months and he's going to have 23 to continue to deal with it. Psychologically, he'll be 24 able to deal with it, according to Dr. Smith, and he's 25 not going to be a threat or a harm to anybody, but COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 4235 Closing Argument - Defense 1 that's what he's got to deal with. 2 Your only other options are to say that 3 instead of his whole life with no hope of ever seeing 4 the outside world again, you could give him life, and 5 he would be eligible to be considered, eligible to be considered, for parole. It doesn't mean he's going to get it, but the best that could happen would be life with eligibility far parole in 25 years, when he's 78 years old. Or the other option you have got is life 10 with a possibility he might be considered to be let out 11 of his cell where he could get on parole., perhaps see 12 Huber Heights again or see the outside world again, at 13 age 83, and those are possibilities. Those are the 14 four choices that you have got in this case. That's 15 the penalty that the law exacts for what he did, and 16 he's responsible and he's got to pay that penalty. 17 But it's not like he gets to go on a picnic if 18 you decide not to kill him. That's not what we're here 19 about. That's not this end of this case. This is a 20 sad case. And there's no two ways about it, we're past 21 the terrible part but we're in the middle of the sad 22 part of this case because the best that can happen to 23 Larry is that maybe he could be considered for parole 24 when he's 78 years old, maybe. And if you think that's 25 not severe enough, you have the right to make sure that COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 4236 Closing Argument - Defense 1 he's never considered for parole, that hope is snuffed 2 out completely, and he's locked away forever. 3 Well, that's really the case, and I have 4 talked to you as a group, but let me end up by talking 5 to you not as a group anymore. I want to talk to each 6 of you individually. It's going to have to go through 7 the process that will begin when these arguments end. 8 Because I have told you that collectively you have this 9 awesome and awful power to kill a man. Individually, 10 that's why I want to talk to you individually now. 11 Individually each of you as an individual human being 12 has the power to save his life. This is not like a 13 firing squad where you have one live round and 14 everybody else is shooting blanks. There's no 15 anonymity here for you as individuals. Every one of you has to make this decision for yourself. And if any of you, if any single person who goes into this deliberation, makes the finding that is your own individual finding, that they have not proven beyond a reasonable doubt, that same high burden we talked about, that they have not proven beyond a reasonable doubt that these aggravating circumstances outweigh 52 23 years weight of mitigating factors, if any one of you 24 finds that, there is no death penalty in this case. 25 Now, here's the man. You heard from him COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 4237 Closing Argument - Defense 1 today. You have heard from him how much he loved 2 Martha, and you have heard from him how much he loved 3 the kids, how much he loved the life that he had. I 4 have told you that he's one of us, not just because 5 we're all the same with 95 percent DNA, but because 6 he's a normal hard working human being. He was up until this awful night, and what I told you the evidence has demonstrated, Dr. Smith has confirmed, he's one of us. I have told you at the outset that this is the kind of guy you'd like to have for your next door neighbor and what I told you was true. The evidence has confirmed it. That's what all these people say who were his neighbors. I told you at the outset that this is the kind of man that you'd want to 15 have coach your kids, to be their role model, to bring 16 them up through life, and what I told you was true. 17 That's what the evidence has shown. There's been no 18 refutation of it. The sadness, the sadness, that 19 brings us all here is this is a man who loved, not 20 wisely, but too well. A man who is a peacemaker, who 21 tried to avoid problems, did it as a child. You heard 22 his sister, his childhood friends, that he was a non- 23 confrontational person, that he tried to solve problems 24 good naturedly, a man who was slow to rise to anger, 25 but when he was aroused,'he was perplexed in the COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 4238 Closing Argument - Defense 1 extreme. An awful story. The story of a crime of passion, a good man who broke. That's what this story is, I submit to you. That's the only fair way to look at it, and each of you as an individual juror, when you consider the weight of the circumstances of his life, when you exclude from your consideration any consideration at all of the aggravated murders, those are not aggravating circumstances. And then you look separately at the aggravating circumstances and what weight they have standing alone, each of you as an individual can, and I submit, should make that determination that this is not a case where you should kill a fellow human being, but that this is a case where the price he pays is the price that the law should exact in a case like this, and that is one of 16 the three life sentences, whichever one you 17 collectively determine appropriate. 18 That's, I submit to you, not just a simple act 19 of you as human beings. It's the act that each of you 20 should do as responsible jurors, abiding by your oaths, 21 because that's the test. Don't put the murders on the 22 scale. Weigh this case with an open mind, impartial, 23 with the mitigating factors that have not been refuted 24 in any way and consider the aggravating circumstances 25 with what weight they have separate from the murders so COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 4239 Rebuttal Closing Argument - State they don't have much weight, ladies and gentlemen. That's where your duty lies. That's where Larry's hope of life lies. That's where his family, his children's hope of not losing their brother, their son, their father, lies. You have got a heavy responsibility. I had a heavy responsibility, and I hope I lived up to mine. I hope you live up to yours. THE COURT: Mr. Daidone? REBUTTAL CLOSING ARGUMENT BY MR. DAIDONE: Your Honor, Counsel, Ms. Hobson, Miss Ballard, Detective Dunsky, ladies and gentlemen, in my closing argument during the trial phase of this case, I told you, you have to stay on the path of what the law and follow the law that the Judge tells you. I told you to 17 stay on the path and to analyze the evidence and not to 18 take detours and go off from the path that will take 19 you to the true verdict following the evidence and the 20 law the Judge gives you in this case. Stay on the 21 path. 22 What do we hear? We here a finger pointing at 23 us saying we are asking you to kill this man. That's 24 what we heard. No, no, no, no, no, no. The State of 25 Ohio is asking you as jurors to follow the law based COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 4240 Rebuttal Closing Argument - State upon the evidence and hold Larry Gapen responsible under the law for his own actions. That's what this is about, holding the Defendant responsible under the law for his own actions. That is why we are here. Do not get off the path. Then we hear some comments about the death penalty would be appropriate in other cases, murders for hire, Oklahoma, the mad bomber sending a bomb. We're not here for that. I'm not going to come up here and recite cases that I think are appropriate or not appropriate for the death penalty? Why? That's not 12 appropriate. We're not judging those cases. We're not 13 here for those cases. We're here for what Larry Gapen, 14 the Defendant, did in this case. Do not go down the 15 path. Do not go down a detour. Stay on the path. We 16 are not here for what happened in other cases. We are 17 here for the facts in this case and the law that the 18 Judge gives you in this case. Stay on the path. 19 The question to you is one question: Does the 20 aggravating circumstances outweigh the mitigating 21 factors? Yes or no. If the answer is yes, the 22 aggravating circumstances outweigh the mitigating 23 factors, the verdict is death. If the answer is no, 24 then you have the life options. 25 How do we go about doing that? Well, you COURT OF COMMON PLEAS : MONTGOMSRY COUNTY, OHIO 4241 Rebuttal Closing Argument - State 1 already found the aggravating circumstances in this 2 case, guilt beyond a reasonable doubt on the 3 aggravating circumstances. We heard a few minutes ago 4 words like these alleged aggravating circumstances. 5 No, no, no. They are not alleged aggravating 6 circumstances. You as jurors have already come to the 7 conclusion that this Defendant is guilty beyond a 8 reasonable doubt of those aggravating circumstances. And the State submits based upon the evidence that these aggravating circumstances carry tremendous weight. What did we hear? Attempts to somehow diminish them. The detention, Martha's fault. Martha was right there. Martha's an accomplice with him. No, no, no. The Defendant made up his own mind to leave and break detention. We are here for the role he played. Do not get off the path. Then we hear that two or more people, a single irrational behavior. Think about that. Think about the evidence presented in the case. The burglary, somehow diminished because he had his photograph by the bed. Who cares? Somebody has a photo in someone's house. You can't go in it, you could go in anytime you want? That's ridiculous. These aggravating 24 circumstances carry great, great, great weight. Stay 25 on the path. COURT OF COMMON PLEAS s MONTGOMERY COUNTY, OHIo 4242 Rebuttal Closing Argument - State 1 The attempted rape, irrational love, well, 2 whether it's irrational, rational we're not here to 3 make those kindof judgments. It occurred, it 4 occurred. You found that it occurred, that he committed the aggravated murders as principal offender while attempting a rape. Stay on the path. The aggravated robbery, the purse, doesn't matter what the item is. He took it. That's how you get that specification. He was the-- During the aggravated murder, he was the principal offender and committed an aggravated robbery. You have found these. Do not go down a detour'. Stay on the path. Now, mitigation. The history, character, and background of the Defendant, the lack of a significant history of a prior criminal record and any other factor that weighs in favor of a sentence other than death. Well, what's been presented? You have mitigation. Let's examine it because you're going to have to weigh and balance the mitigation to the aggravating circumstances. Let's take a look at it. Let's take a look at what it is and what it isn't. What did we hear during yesterday? We heard things like remember, we're not here for the history and character of Martha Madewell or for 25 Daniel or for Jesica Young or for Daniel Marshall, but COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 4243 Rebuttal Closing Argument - State we heard little comments, like from Jennifer Gray, that Martha was a nasty, got nasty when she was drinking. Well, we're here for the history, character, and background of the Defendant. Not Martha Madewell. Stay on the path. We heard things like Daniel and what he was like, and he tried to rule the household. He did this and he did that. We're not here for the character of Daniel Marshall. We're here for the character of the Defendant. Stay on the path. The Defendant made a statement to you this morning, and I would just remind the jury that the 13 Defendant's statement was not made under oath in contrast to the testimony of all the other witnesses in the case. What did the Defendant say to you? Huh? "I love Martha." Is that mitigation? You decide that. How much mitigation is it in him coming up here today saying, "I love Martha"? How much mitigation is that for him to come up to say, "I love Billy"? How much mitigation is that? You decide the weight of that. And then him coming up here and saying, "I'm sorry." Ten months after the event he comes in here and says, 23 "I'm sorry." When you consider and weigh that in 24 mitigation, think about something. Think about what 25 the Defendant said back on September 18, 2000, a few COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 4244 Rebuttal Closing Argument - State hours after the crime, when he told Detective Mark Salyer, "I'm not sorry. I'm not sorry." I'm happy about it. I'm happy about it. Keep that in mind when you weigh the value of the mitigation. Then we hear from family and from friends of the Defendant and it's emotional. And some of them got up, there were some tears. Now, when you 8 judge this case on the facts, listen and judge on what the witnesses said, not because they came up here and they're his relative an they cried because that would be emotion. Judge this case on the facts, not on the fact that his mother or his brother or his sister or 13 his best friend testified. We are not here for 14 sympathy. We are not here for sympathy. 15 Well, how much weight do you give some of the 16 things that they said? Some of this stuff, 52 years, 17 well, we heard from his sister, Diane. She.hasn't seen 18 him in three years. Barry was a bat boy 40 years ago, 19 the Defendant made him a bat boy. Jo Ann Fister, his 20 sister, had very little contact in three decades, saw 21 him once in 1990. 22 Well, you decide how much value you want to 23 give the things that they said about this man when you 24 weigh and balance. He's a nice guy. Well, how much 25 value do you want to give that compared to the COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 4245 Rebuttal Closing Argument - State aggravating circumstances? That's your decision. Or that he's a coach, a coach, a coach, a coach, a coach, a coach, and they go and show you pictures. Well, the Defendant is one out of a hundred or more people that coach, that do coach football, cheerleading, and help out. He's one out of a hundred, 150. Who knows how many people help out? How much weight do you want to give that? How does that lessen his moral culpability? How? He's a role model and it's kind of interesting that what was argued to you was even Heather Morgan, just said about a half hour ago, that Heather Morgan's 13 son or whatever even looked up to the Defendant as a 14 role model. Well, think about it! He shouldn't have 15 even been out there coaching to begin with. When he 16 was out there coaching for Heather Morgan's son, he was 17 breaking detention. He shouldn't have even been out 18 there to begin with. That's the role model. 19 And he helped wrap Christmas presents. Does 20 that diminish his moral culpability? He helped put a 21 roof on a house. He was nice to kids. That's what we 22 have. And it's up to you to decide how much weight you 23 want to give that when you compare it to the 24 aggravating circumstances that are in each and every 25 one of those aggravated murders and attached to them. COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO 4246 Instructions t the Jury That's your job. And the State submits to you when you take the nice guy, the coach, and everything else, these aggravating circumstances in this case clearly, clearly outweigh any mitigating factors put forth during this trial. The State is asking you to follow the law, to do the test the Judge can tell you to weigh and balance 8 the aggravating circumstances against the mitigating factors, and that answer is going to be this: Does the aggravating circumstances outweigh any mitigating factors? And it's going to be a booming and resounding yes. Twelve times yes, that the aggravating circumstances outweigh the mitigating factors. The State is asking you based upon that, to return a verdict of death for each and every one of those 16 aggravated murders. Thank you. 17 INSTRUCTIONS TO THE JURY 18 BY THE COURT: 19 Members of the jury, you have heard the 20 evidence and the arguments of counsel. It is now my 21 duty to instruct you on the law that is applicable to 22 this proceeding. 23 The Court and jury have separate functions. 24 It is your function to decide the disputed questions of 25 fact and to determine what sentence shall be imposed COURT OF COMMON PLEAS : MONTGOMERY COUNTY, OHIO Exhibit 10 Motion for Reconsideration In The Snpreme Court Of Ohio State Of Ohio, Appellee, Case No. 01-1518 -vs- Appeal taken from Montgomery County Court of Common Pleas Larry James Gapen Case No. 2000 CR 02945 Appellant. This is a death penalty case Appellant's Motion for Reconsideration Mathias Heck David H. Bodiker Prosecuting Attorney Ohio Public Defender Kaxsten Brandt - 0070162 Robert K. Lowe - 0072264 Assistant Prosecuting Attoiney Assistant State Public Defender Counsel of Record Montgomery County Prosecutor Office of the Ohio Public Defender 301 W. Third Street 8 East Long Street -11th. Floor Suite 500 Columbus, Ohio 43215-2998 Dayton, Ohio 45422 (614) 466-5394 (937) 225-5757 5614) 728-3670 - FAX Counsel For Appellee Counsel For Appellant u UD DEC 2 7 ?904 MARCIA J. MENGEL, CLERK SllFREME COURT OF OHIO In The Stipreme Court Of Ohio State Of Ohio, Appellee, Case No. 01-1518 -vs- . Appeal taken from Montgomery County Court of Common Pleas Larry James Gapen Case No. 2000 CR 02945 Appellant. This is a death penalty case Appellant's Motion for Reconsideration Appellant, Larry Gapen, requests that this Court reconsider its merits ruling of December 15, 2004 affirrning both his convictions and death sentence. This request is made under Sup. Ct. Prac. R. XI § 2(A)(4). The reasons for this Motion arc more fully set forth in the attached r.o.emorandum in support. Respectfitlly submitted, David H. Bodiker Ohio Public Defender Robert K. Lowe - 0072264 Assistant State Public Defender Counsel of Record Office of the Ohio Public Defender 8 East Long Street -11th. Floor Columbus, Ohio 43215-2998 (614) 466-5394 Counsel For Appellant Memorandum In Support Proposition Of Law No. I Once A Capital Jury In The Penalty Phase Has Indicated That It Has Rejected The Death Sentence And Is Deadlocked As To Which Life Sentence To Impose, It Is Constitutionally Irnpermissible For The Trial Court To Instruct It To Return To Its Deliberations And To Consider Death In An Effort To Reach A Unanimous Verdict. In rejecting Gapen's First Proposition of Law, this Court found that the jury did not reject the death penalty in its note. State v. Gapen, _ Ohio St. 3d _, 2004-Ohio-6548, slip op. at 29- 33 (2004). This Court's finding is contrary to the record in this case. Gapen therefore respectfully requests that this Court reconsider the merits of this issue. The note states: "We, the jury, cannot unanimously agree on a specific life sentence and are unable to render a sentencing verdict "(Tr. 4281). The trial court acknowledged that this note raised two questions_ First, whether this applied to all counts. Second, whether the jury was no longer being productive in its deliberations. (Tr. 4282-83). The trial court proceeded to clarify the note by conducting the following colloquy with juror foreperson Ms. Floumoy: The Court: * * * Now this poses two questions to the Court. First of all, for the foreperson to answer is this to all counts? Ms. Flournoy: Yes. The Court: Okay. Have you reached the point where you are no longer being productive as jurors in your discussion? Ms. Flournoy: Correct.. (Tr. 4281-83); See also Gapen, _ Ohio St. 3d , 2004-Ohio-6548, slip op. at 29. The note and colloquy read together are unequivocal. The trial court clarified with foreperson Floi.unoy that the jury could not agee on a specific life sentence on all counts. This Court makes the same mistake as the trial court. Both ignore the clarification colloquy with foreperson Flournoy to find that the note was not clear. This Court's acceptance of the trial cottrt's comment that the note and colloquy is not clear is contrary to the plain language of the record; the note was clarified by the colloquy. Failure to acknowledge the colloquy violates Gapen's right to have his sentence decided by the jury. Purthermore, there was coercion by not accepting the jury's note and foreperson's colloquy. The coercion is not the denial of food or sleep, but fear in the jury's mind that a life sentence was not appropriate and that death was the only appropriate sentence. See People v. LaValle, 3 N.Y.3d 88, 126 (New York 2004) ("the motivating fear in the minds of a juror in a numerical minority is likely to be that a vote for life without the possibility of parole is really a vote for life with the possibility of parole"). This jury deliberated for over two days. It asked for "clarification on the instructions that addressed voting on life sentences" on the first day. Gapen, _ Ohio St. 3d 2004-Ohio-6548, slip op. at 29, para. 115. Then, on the second day, the jury informed the trial court it could not agree on a specific life sentence. The trial court clarified the note with questions in which the jury told the court that it was to aU. counts and it was no longer being productive in its deliberations. The trial court's refusal to accept the jury's note, and the ensuing colloquy that it could not agree on a specific life sentence, coerced the jury to reject its own deliberations and start over because life was unacceptable to the trial court. Therefora, Gapen respectfully requests that this Cotut vacate its opinion and impose life withotit the possibility ofparole. Proposition Of Law No.1I When The Trial Court Fails To Merge Multiple Aggravated Murder Counts For A Single Victim Prior To The Sentencing Phase And A Jtiry Retums Divergent Sentencing Recommendations For Those Counts, The Resultant Death Sentence Is Invalid And Violates The Eighth And Fourteenth Amendments To The United States Constitution And Article I, Sections 2, 9 And 16 Of The Ohio Constitution. In rejecting Gapen's Second Proposition of Law, this Court found that binding life verdicts could be merged into a non-binding death recommendation. State v. Gapen , Ohio St. 3d I 2004-Ohio-6548, slip op. at 33-34 (2004). It is impermissible to ignore binding life verdicts and merge those verdicts into a death recommendation. Gapen therefore respectfully requests that this Court reconsider the merits of this issue. The jury convicted Gapen on all four counts of aggravated murder as related to Jesica Young. Defense counsel requested that the trial court merge the counts prior to the sentencing phase. (Tr. 4173). The trial court denied defense counsel's requests. Id. Subsequently, the jury returned divergent sentences by imposing three life without the possibility of parole verdicts and one non-binding death recommendation. The trial.ca.urt.imposed death upon Gapen and stated that the life verdicts were merged into the death recommendation. The trial court gave no rationale for merging life into death. It is improper to merge binding life verdicts into a death recommendation. O.R.C. § 2929.03(D)(2)(b) mandates a trial court to impose life after the jury returns a life verdict. See State v. Williams, 23 Ohio St. 3d 16, 22, 490 tl.E.2d 906, 912 (1986); sae also State v. Snringgr. 63 Ohio St. 3d 167, 172-73, 586 N.E.2d 96, 100 (1992); State v. Brooks, 75 Ohio St. 3d 148, 162, 661 N.E.2d 1030, 1042 (1996) (single juror can secure life sentence by finding mitigation outweighs aggravating circumstances). O.R.C. § 2929.03(D)(2)(b) states that if the jury returns a life verdict, "the court sball impose the sentence reconamended by the jury upon the offender." (Emphasis added). Thus, once the jury returned a life verdict for the killing of Jesica, the trial cotut was required to impose that life sentence regardless of any other sentence recommended under O.R.C. § 2929.03(D)(2)(b). This Court ignored the mandate of O.R.C. § 2929.03(D)(2)(b) just as the trial court ignored this mandate. See Gapen, _ Ohio St. 3d _, 2004-Ohio-6548, slip op. at 33-34. Gapen's case is different from every previous capital case this Court has reviewed where the trial court failed to merge multiple counts of aggravated murder of a single victim. The jury in this case recommended one death sentence and three life without the possibility of parole sentences on four counts of aggravated murder for a single victim. (Tr. 4301-03.) This Court in its merit review did not address O.R.C. § 2929.03(D)(2)(b)'s mandate to the trial court to impose a life verdict as rendered by a jury. Gapert, _ Ohio St. 3d __,, 2004-Ohio-6548, slip op. at 33-34. Instead, this Court took the same steps the trial court below did and ignored the life verdicts to impose death. Fuzthermore, Gapen's death sentence violates his Sixth Amendment right to have his sentence determined by a jury. When, a penalty is enhanced by a factual finding, that finding must be made by a jury in order to comply with the Sixth Amendment. Blakely v. Washington, U.S. 124 S.Ct. 2531 (2004); Apprendi v. New Jersev. 530 U.S. 466 (2000); Rin£ v. Arizona, _ U.S. _ 122 S.Ct. 2428 (2002). In Btakely, Court held that "[w]hen a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts `which the law makes essential to the punishment,' and the judge exceeds his proper authority." Blakelv. _ U.S. at _, 124 S.Ct. at 2537 (citations omitted). Hence, this Court's finding that the trial court's decision was proper in choosing death over life and merging three life verdicts into death improperly enhanced his sentence by a factual finding that violated Gapen's Sixth Amendment right to have his sentence determined by a jury. Under O.R.C. § 2929.03(D), the jury must return a death recommendation before the trial court may impose death. As to Jesica, the jury returned three life verdicts for the aggravated murder of her. The trial court improperly made factual findings that the aggravating circumstances outweighed the mitigating factors. The trial court improperly inflicted a punishment that was not authorized by O.R.C. § 2929.03(D)(2)(b). Additionally, this Court's affumance of the trial court's selection of the death sentence over three binding life verdicts violated Gapen's Eighth Elmendment right to have his sentence based on reason rather than caprice or emotion. See Gardner v. Florida 430 U.S. 349, 358 (1977). A state's capital scheme that permits a trial court to select death after the jury returned binding life verdicts, violates the Due Process Clause under the Fourteenth Amendment. "The Framers would not have thought it too much to demand that, before depriving a man of ... his liberty, the State should suffer the modest inconvenience of submitting its accusation to the `unanimous suffrage of twelve of his equals and neighbours,' 4 Blackstone, Commentaries, at 343, rather than a lone employee of the State." Blakelv, U.S, at _, 124 S.Ct. at 2543. Therefnre, Gapen respectfully requests that this Court vacate its opinion, merge Count thirteen's death recommendation into Count's fourteen through sixteen and impose life without the possibility of parole. Proposition Of Law No. VI Where The Defendant Has Led An Otherwise Exemplary Life With The Murder Being A Total Aberration And He Will Adjust Well To Prison, The Death Penalty Is Not The Appropriate Punishment. In rejecting Gapen's Sixth Proposition of Law, this Court found Larry Gapen's death sentence appropriate. State v. Gaven, - Ohio St. 3d _, 2004-Ohio-6548, slip op. at 36-45 (2004). However, Gapen's death sentence is inappropriate. Gapen therefore respectfully requests this Court reconsider the merits of this issue. This case is very rare in Ohio's modern capital jurisprudence. The jury weighed the same five aggravating circumstances against the same mitigating factors four times for the killing of 7esica Young. Three times, the jury imposed life without the possibility of parole. On the fourth count, the jury recommended the death penalty. The jury's decision to recommend the death penalty was not an overwhehning decision because the jury also returned three life verdicts. Thus, this Court erred in fmding the death penalty appropriate in this case because the jury imposed three life verdicts for the aggravated murder of lesica. This Court also improperly engaged in appellate re-weighing atter one aggravating circumstance was eliminated. See Fourth Proposition of Law, Gapen, _ Ohio St. 3d 2004- Ohio-6548, slip op. at 16-20 (pretrial electronic home monitoring not detention for purposes of escape nor O.R.C. § 2929.04(A)(4)). Appellate re-weighing is improper because the Sixth Amendment requires the jury to make the detemiination of fact when there is an increase in punishment. In Ring v. Arizona, the United States Supreme Court held that "[clapital defendants ... are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment." 536 U.S. 584, 589 (2002). Thus, once an aggravating circumstance is vacated, appellate re-weighing is improper because the reviewing court is making a new determination of fact that must be made by the jury. (Cf. Clemons v. Mississipvi 494 U.S. 738 (1990)). Therefore, this Cotirt erred in conducting its appellate re-weighing to affirm the death sentence. Alternatively, if re-weighing was proper, the aggravating circumstances do not outweigh the mitigating factors. First, the jury found Gapen's mitigating evidence compelling. The jury found that the aggravating circumstances did not outweigh Gapen's mitigating factors on three counts. And second, the scales were tipped in favor of life as the appropriate sentence for Gapen once this Court eliminated one aggravating circumstance. See Fourth Proposition of Law, Ganen, _ Ohio St. 3d _,^1004-Ohio-6548, slip op. at 16-20. With Gapen's compelling mitigating evidence and the elimination of an aggravating circumstance, this Court erred in finding that the aggravating circumstances outweighed the mitigating factors on the lone death reconunendation. Furthermore, Gapen's death sentence is not appropriate nor proportional. Although this Court looked at other capital cases to find Gapen's death sentence appropriate, this-Court must look at the ttaree counts which Gapen's jury returned life. This Court has held that it will look to co-defendants non-death sentences to detennine whether the death sentence is appropriate and proportional. State v. Herring, 94 Ohio St. 3d 246, 267-68, 762 N.E.2d 940, 962 (2002); See also State v. Getsy, 84 Ohio St 3d 180, 208-09, 702 N.E.2d 866, 892 (1998) (citing Parker v. Duaeer, 498 U.S. 308 (1991). In Getsv, this Coiut noted that when determining appropriateness and proportionality, "this court must consider whether the sentence is disproportionate to the penalty imposed in similar cases. No previous case has the same three aggravating circumstances." 84 Ohio St. 3d at 209, 702 N.E.2d at 892. Gapen's life verdicts present the identical aggravating circtunstances for the same victim, which yielded two different sentences. The jury weighed the same five aggravating circumstances against the same mitigating factors. The jury retumed three life verdicts and one death reconunendation for Jesica's aggravated murder. The lone death recommendation is not appropriate nor proportional when compared to the three other life verdicts. Gapen's death sentence is an anomaly. Proportionality review is conducted to "eliminate the possibility that a person will be sentenced to die by action of an aberrant jury." Gregg v. Ge oreaa. 428 U.S. 153, 206 (1976). Gapen's jury weighed identical aggravating circumstances against identical mitigating factors four times for the aggravated murder of Jesica. This jury returned tbree life verdicts and one death recommendation for Jesica's aggravated murder. This Court's proportionality review must correct an aberrant verdict, which rendered two different sentences with identical circumstances for a single victim. When discussing the death recommendation for Jesica, this Court held that "Gapen offered no substantial mitigation to weigh against these collective aggravating circumstances." Gapen. _ Ohio St. 3d _, 2004- Ohio-6548, slip op. at 44. If this is true, the juiy would not have imposed three life sentences• for Jesica's aggravated murder. The jury believed that Gapen presented compelling mitigation to impose three life verdicts. Gapen's death sentence` is tlie product of an aberrant jury which must be vacated. Therefore, Gapen respectfully requests that this Court vacate its opinion and impose life without the possibility ofparole. Conclusion For each of the forgoing reasons, Appellant Larry James Gapen requests that this Court reconsider its decision on the merits issued on December 15, 2004. Respectfully submitted, David H. Bodiker Ohio Public Defender Robert K. Lowe - 0072264 Assistant State Public Defender Counsel of Record Office of the Ohio Public Defender 8 East Long Street -11 th. Floor Columbus, Ohio 43215-2998 (614) 466-5394 Counsel For Appellant Certificate Of Sezvice I hereby certify that a true copy of the foregoing Appellant's Motion For Reconsideration was delivered by regular U.S. Mail to: Kirsten Brandt, Assistant Prosecuting Attomey, Montgomery County, 301 W. Third Street Suite 500, Dayton, Ohio 45422, this 27th day of December, 2004. -Ro'bert K. Lowe - 0072264 Assistant State Public Defender Counsel For Appellant