Opposition Brief — Bennie Adams, Petitioner v. Ohio

No. 19-8803

In the Supreme Court of the United States

________________________________

BENNIE ADAMS,

Petitioner,

v.

STATE OF OHIO,

Respondent.

__________________________________

ON PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF OHIO

___________________________________

BRIEF IN OPPOSITION TO THE PETITION

FOR WRIT OF CERTIORARI

___________________________________

KIMBERLY RIGBY

(Ohio Reg. No. 0078245)

Supervising Attorney

Death Penalty Department

Counsel of Record

KIMBERLYN SECCURO

(Ohio Reg. No. 0099232)

Assistant Public Defender

OFFICE OF THE OHIO PUBLIC

DEFENDER

250 E. BROAD ST., SUITE 1400

COLUMBUS, OH 43215

PH: (614) 466-5394

FX: (614) 644-0708

kimberly.rigby@opd.ohio.gov

kimberlyn.seccuro@opd.ohio.gov

PAUL J. GAINS

(Ohio Reg. No. 0020323)

Mahoning County Prosecutor

RALPH M. RIVERA

(Ohio Reg. No. 0082063)

Assistant Prosecutor

Counsel of Record

MAHONING COUNTY

PROSECUTOR’S OFFICE

21 W. BOARDMAN ST., 6TH FL.

YOUNGSTOWN, OH 44503

PH: (330) 740-2330

FX: (330) 740-2008

pgains@mahoningcountyoh.gov

rrivera@mahoningcountyoh.gov

COUNSEL FOR RESPONDENT

COUNSEL FOR PETITIONER

TABLE OF CONTENTS

TABLE OF CONTENTS………………………………………………………………ii

TABLE OF AUTHORITIES…………………………………………………………iii

STATEMENT OF THE CASE AND FACTS……………………….………………1

REASONS FOR DENYING THE WRIT…..………………………………………16

I.

A Substitute Coroner’s Testimony Regarding the Victim’s

Cause of Death, Which is Based Upon the Substitute

Coroner’s Observations and Conclusions, Does Not

Implicate the Sixth Amendment.

CONCLUSION………………………………………………………………………..31

ii

TABLE OF AUTHORITIES

CASES:

Bullcoming v. New Mexico, 564 U.S. 647, 131 S.Ct. 2705, 180 L.Ed.2d 610

(2011)…………………………………………………………………………..19, 20, 21

Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177

(2004)……………………………………………………………………………….17, 19

Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224

(2006)……………………………………………………………………………….17, 18

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527,

174 L.Ed.2d 314 (2009)…………………………………………………...…18, 19, 26

People v. Durio, 7 Misc.3d 729, 794 N.Y.S.2d 863 (2005)…………………..25, 26

People v. Williams, 238 Ill.2d 125 (2010)……………………………..….21, 22, 23

Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965)………..16

State v. Adams, 144 Ohio St.3d 429, 2015 Ohio 3954, 45 N.E.3d 127……..1-13

State v. Adams, 7th Dist. No. 08 MA 246, 2011 Ohio 5361……………………..13

State v. Adams, 144 Ohio St.3d 429, 2015 Ohio 3954, 45 N.E.3d 127………..13

State v. Adams, 7th Dist. 08 MA 246, 2012 Ohio 2719……………………...14, 26

State v. Adams, 146 Ohio St.3d 232, 2016 Ohio 3043, 54 N.E.3d 1227….14, 27

State v. Adams, 7th Dist. Mahoning No. 18 MA 116, 2019 Ohio 4090………..15

State v. Adams, 2020 Ohio 122, 137 N.E.3d 1214……………………………….15

State v. Craig, 110 Ohio St.3d 306, 2006 Ohio 4571, 853 N.E.2d 621.24, 25, 26

State v. Hardin, 4th Dist. Pike No. 10 CA 803, 2010 Ohio 6304……………….26

State v. Maxwell, 139 Ohio St.3d 12, 2014 Ohio 1019, 9 N.E.3d 930..23, 24, 27

State v. Mitchell, 7th Dist. Columbiana No. 05 CO 63, 2008 Ohio 1525……...26

iii

State v. Monroe, 8th Dist. Cuyahoga No. 94768, 2011 Ohio 3045……………..26

State v. Zimmerman, 8th Dist. Cuyahoga No. 96210, 2011 Ohio 6156……….26

United States v. Garvey, 688 F.3d 881 (7th Cir. 2012)…………………………..23

Williams v. Illinois, 567 U.S. 50, 132 S.Ct. 2221, 183 L.Ed.2d 89

(2012)…………………………………………………………………………..21, 23, 27

CONSTITUTIONAL PROVISIONS:

Sixth Amendment to the U.S. Constitution………………………………………16

RULES:

OH. Evid.R. 803……………………………………………………………………….27

iv

STATEMENT OF THE CASE

I.

Trial Phase

The Supreme Court of Ohio previously summarized the facts that

established Defendant-Petitioner Bennie L. Adams’ guilt beyond a reasonable

doubt:

The Burglary and the Murder

In the autumn of 1985, Gina Tenney was a sophomore

at Youngstown State University. She lived alone in a

second-floor apartment in a converted house on Ohio

Avenue in Youngstown.

Adams lived in the same house in a downstairs

apartment with his girlfriend, Adena Fedelia. The duplex

had an interior common staircase.

Around 1:00 a.m. on December 25, 1985, Tenney was

getting ready for bed when, as she told a friend, she

“heard someone at the door with the keys like they were

trying to get in.” Tenney called her ex-boyfriend, Mark

Passarello, who came and stayed with her until about

3:00 a.m. on Christmas morning.

Shortly after Passarello left, Tenney again heard

someone at her door. The person knocked over the chair

Tenney had placed against the door and entered the

apartment. Tenney called the police to report an intruder

in her apartment. The responding police officers found

footprints in the snow leading from her apartment to 275

West Dennick Avenue in Youngstown.

The investigation was assigned to Detective William

Blanchard of the Youngstown Police Department. On

December 26, 1985, Blanchard met with Tenney at her

apartment. Looking at her apartment door, Blanchard

saw “slight” but “noticeable” evidence of a forced entry.

Blanchard followed up on the report of footprints by

traveling to 275 West Dennick and interviewing a

1

resident there, Ed Tragesser. Tragesser claimed to know

nothing about the break-in. Blanchard testified that

Tragesser was never ruled out as the burglar but that

there was no evidence to sustain charging him with any

crime. Blanchard, however, suspected that Adams may

have been the burglar based on what Tenney had told

him.

Tenney's friend, Penny Sergeff, also suspected that

Adams was the burglar.

According to Sergeff, the outside door to Tenney's

building made a loud screeching noise when it was opened

or closed. But Tenney had not heard the door screech the

night of the burglary, which suggested to Sergeff that the

burglar had not come from outside the apartment

building. Sergeff shared the information about the

screeching door with the police, but never explicitly

communicated her suspicions about Adams at the time

she initially spoke to the police.

Less than a week after the break-in, on the morning of

December 30, 1985, Tenney's dead body was discovered in

the Mahoning River. Upon identifying Tenney's body,

homicide detectives called Blanchard into the

investigation.

The Investigation and Arrest of Adams

From the outset, Blanchard considered Adams a

person of interest in the homicide.

Blanchard and two homicide detectives traveled to the

duplex on Ohio Avenue. They knocked on the exterior

door for “a number of minutes” until Adams emerged from

his apartment and admitted them into the common area.

Upstairs, the police officers found the door to Tenney's

apartment locked. They observed no blood on the steps.

Blanchard saw no new evidence of forced entry.

The investigators decided to call the building's owner

for the key to Tenney's apartment. They then knocked on

2

Adams's apartment door for permission to use his

telephone; Adams let them in.

While one detective placed the call, Blanchard and

Lieutenant David Campana talked to Adams, asking him

when he had last seen Tenney, whether anything

suspicious had been happening lately, whether anybody

else was around who might know something, and whether

he was alone. Adams indicated that he was alone in the

apartment and told detectives that he did not know where

Tenney might be.

Just then, the detectives heard a loud bump, a sound

like a door hitting a wall. Adams then said, “I never said

he wasn't here” or words to that effect. Blanchard and

Campana went into a back bedroom, where they found

Horace Landers hiding behind a door.

Campana recognized Landers and remembered that

there was an outstanding misdemeanor warrant for him.

Campana and Blanchard immediately arrested Landers

and handcuffed him.

Landers was wearing trousers, but was bare-chested.

Knowing that they would have to take him outside into

the cold, Blanchard looked around and saw a shirt on the

bed, which he draped over Landers's shoulders. But

Blanchard thought that he should put something else on

Landers. He saw a jacket on the floor three or four feet

away, just outside the door to the bedroom where they

had found Landers.

As Blanchard searched the jacket for weapons,

Landers told him that the jacket belonged to Adams.

Simultaneously, Blanchard felt a hard object in the pocket

and pulled it out. The object was an ATM card from

Dollar Bank bearing the name Gina Tenney. Blanchard

testified that he also found a folded Mahoning County

welfare card in the name of Bennie Adams in the pocket.

The police officers immediately arrested Adams. When

they searched him, they found a blue tissue in his pants

pocket with two cigarette butts wrapped up in it.

3

Fedelia, whose name was on the lease, consented to a

search of the apartment she shared with Adams. In a

bathroom wastepaper basket, police officers found a ring

of ten keys with the letter G on the keychain. One of the

keys fit Tenney's apartment door and another key fit her

automobile.

In the kitchen, Blanchard found a potholder with hair

and dirt on it in a wastebasket. Police officers later found

a matching potholder atop the refrigerator in Tenney's

apartment.

Police officers also found an unplugged television on a

bed in Adams's apartment. The serial number on the

television matched the number on an empty television box

later discovered in Tenney's apartment. A wall unit in

Tenney's apartment contained an empty space for a

television, and a cable-television line dangled in the

space.

In Tenney's apartment, Blanchard saw no broken

glass, broken furniture, or other indication that the home

had been ransacked. A plate of food and a beer bottle were

on the kitchen table. At trial, Blanchard claimed a “vague

recollection” of “some disarray,” but he could not recall

what he had observed. His contemporaneous investigative

notes did not mention disarray or overturned furniture.

Tenney's friends told police investigators that Adams

had been bothering Tenney for some time before her

death. Sergeff and Marvin Robinson, another one of

Tenney's friends, testified that when they visited Tenney,

Adams often stood in his doorway watching them or

peeked out through the curtains. According to Robinson

and Sergeff, Adams started calling Tenney late at night,

asking her to invite him up to her apartment. The calls

continued even after Tenney asked him to stop, and

Tenney eventually changed her telephone number.

Robinson also described an incident in which someone

slipped a card in an envelope under Tenney's back door

addressed “to a very sweet and confused young lady” and

signed “love, Bennie.” Police officers found the envelope in

Tenney's apartment but did not find the card.

4

According to her friends, after the Christmas break-in

Tenney's emotional state changed from frustration with

Adams to fear of him. For the next few nights, she asked a

friend to stay over because she was afraid to be alone.

Sergeff testified that Tenney specifically had said that she

was afraid of Adams, a detail Sergeff did not include in

her police statement given shortly after Tenney's death.

At trial, Tenney's friends described their interactions

with her during the last two days of her life. Sergeff and

Tenney spent the evening of December 28, 1985, watching

television in Tenney's apartment. At some point,

Passarello, Tenney's ex-boyfriend, came over, and Sergeff

asked him to drive her home. Passarello then returned to

Tenney's apartment. Passarello testified that Tenney did

not feel secure in the apartment. He stayed the night, and

the two had sexual relations.

Passarello left the next day after lunch and went home

to his apartment. Tenney left separately at the same time

to meet a friend, Jeff Thomas, for an early afternoon

movie.

After the movie, Thomas and Tenney had dinner near

the theater. Thomas testified that they talked about work

and school, but Tenney kept bringing the conversation

back to “the situation that was going on where she was

living.” She told Thomas that she was very concerned

about “the man downstairs.” Thomas described her as

“apprehensive” and “borderline fearful.” Thomas and

Tenney parted around 4:30 or 5:00 p.m.

Tenney's mother, Avalon Tenney, testified that her

daughter had called her the day before she died and told

her that she was afraid of Adams.

The Identification of Adams

As part of the homicide investigation, detectives

obtained Tenney's bank-account records from Dollar

Bank. Her account records for December 29, 1985, showed

six attempted transactions on her ATM card between 9:24

and 9:34 p.m.: three attempts to withdraw cash (all

5

denied for insufficient funds), two phony attempted

deposits using empty deposit envelopes, and an

unsuccessful attempt to transfer funds between accounts.

Police officers questioned other bank customers whose

ATM cards were used at the same ATM machine around

the same time as the attempted transactions using

Tenney's card. One customer, John Allie, told police

officers that he saw a man at the ATM on the night in

question.

On January 8, 1986, Blanchard brought John Allie and

his wife, Sandra Allie, who had also seen the man use the

ATM, to the station to view an in-person lineup. There

were six men in the lineup, including Adams and

Landers. John Allie did not make an identification;

Sandra Allie identified Landers as the man she saw at the

ATM.

At trial, John Allie testified that he had not identified

anyone in the lineup because he was not comfortable with

the number of people in the room. He also testified, “I told

my wife, don't say anything because we need to talk to

detective Blanchard. Don't mention nothing to nobody.”

John Allie told the jury that he later telephoned

Blanchard and said that the man from the ATM was third

from the left, which was the place where Adams had stood

in the lineup. John claimed that he returned to the police

station the next day, met with Blanchard, viewed a photo

array of three pictures, and made an identification of

Adams.1

Sandra Allie testified at trial that she purposely made

a false identification at the lineup. She testified that on

the way to the station that day, John had expressed

concern about putting her “in harm's way.” When they

arrived, they were taken to an office with other people

present and not to the dark room that Sandra had been

expecting. John then told her that “he didn't like the

surroundings.” “He gave me like the signal,” Sandra

testified. “When asked if I could identify the person who

was in the ATM I was just terrified, went to the extreme

opposite and identified a short, light-skinned person.”

6

Like her husband, Sandra Allie testified that she

spoke to police officers some time after the lineup to

identify “the actual person,” but said that the police

officers did not request a statement about her

misidentification at the first lineup or call her back to

view a second lineup.

At trial, the Allies both said that when they arrived at

the bank that night,2 they saw a man in the ATM

vestibule who appeared not to know how to use the ATM.

The man's face was covered by a hood and scarf, so that

only his forehead, eyes, and the bridge of his nose were

visible.

Sandra Allie described the man as a little taller than

she is. John Allie agreed that the man was “about

medium height.”3

At trial, Sandra Allie viewed a photograph of the sixman lineup and testified that person Number 3 (Adams)

was the man at the ATM. John Allie also identified

Adams.

John Allie testified that when the man came out of the

ATM vestibule, he stood in front of the Allies' car and

waved: “He put his hands—palms on the hood of my car

and stood back, looked at me. I looked at him. He waved. I

waved.” John recognized Adams from seeing him around

the neighborhood, even though he did not know Adams's

name at the time.

When the man started the car he was driving, John

Allie heard it make an unusual sound. John testified that

the vehicle was a Buick and identified it from

photographs as Tenney's car. When John came to the

police station, he correctly picked out Tenney's car from

the 15 or 20 he was shown. An officer started the engine,

and the car made the same sound that John had heard it

make at the bank.

The Parole Officer's Interviews with Adams

7

Adams's former parole officer, William Soccorsy,

testified that he interviewed Adams twice after his 1985

arrest. The first time they spoke, on December 30, 1985,

Adams denied committing any crime and denied having

any knowledge that any crime had been committed.

On January 2, 1986, Soccorsy asked Adams about the

ATM card. According to Soccorsy, Adams admitted that

the jacket in which the card was found belonged to him.

Soccorsy's contemporaneous notes included a statement

by Adams to the effect that he found the ATM card

outside his building on the front step at around 11:30 a.m.

on December 30, 1985. Adams told Soccorsy that he rang

Tenney's doorbell to return the card but she was not

home, so he put the card in his jacket pocket, intending to

return it at some later time.

The Autopsy of Tenney

On December 31, 1985, an autopsy of Tenney's body

was performed under the supervision of Mahoning County

Coroner Nathan D. Belinky, M.D.

Dr. Belinky reported finding “ligature type

contusion(s)” on the neck, as well as “doubletrack ligature

type contusions” around both wrists. There were

additional contusions and/or abrasions on both wrists, the

abdomen and chest, both breasts, and around the nose,

lips, and chin. There was blood coming from the right

nostril. Dr. Belinky concluded that the cause of death was

“traumatic asphyxiation,” and he ruled the death a

homicide.

Dr. Belinky was deceased when the case first came to

trial in 2008, and the state called Dr. Humphrey

Germaniuk as its expert forensic pathologist.

Dr. Germaniuk testified that he reviewed Dr. Belinky's

autopsy report and the death certificate, as well as the

videotape of the autopsy and photographs of the body and

the scene. The photographs showed a bruise or contusion

on the upper part of Tenney's right lip and abrasions or

contusions on her chin, a faint ligature mark on Tenney's

8

neck (which Dr. Germaniuk described as “superficial”),

and ligature marks on her left and right wrists.

Dr. Germaniuk ruled out drowning as a cause of death

based on the absence of a “foam cone” around Tenney's

mouth. He concluded that the cause of death was

asphyxia and the manner of death was homicide. But Dr.

Germaniuk took issue with the phrase “traumatic

asphyxiation” in the autopsy report, which he

characterized as “somewhat inexact, somewhat incorrect.”

He would have described the cause of death as “asphyxia,”

which simply means lack of oxygen.

Dr. Germaniuk observed a bruise or contusion on the

upper part of Tenney's right lip and abrasions or

contusions on her chin. Although Dr. Germaniuk testified

that the marks were consistent with smothering by means

of a hand or object placed over her face, he also testified

that the marks could have been caused by someone

hitting her in the face. Dr. Germaniuk said that the

evidence of smothering was not significant enough for him

to declare that the cause of death with any reasonable

medical certainty.

Likewise, Dr. Germaniuk testified that there was

evidence of ligature strangulation, including petechial

hemorrhaging, but the ligature marks did not break the

skin. The injuries could have been caused by

strangulation or by being tied up, but Dr. Germaniuk

could not say that ligature strangulation caused Tenney's

death. Dr. Germaniuk testified that the cause of death

was “probably” some combination of smothering and/or

ligature strangulation. Ultimately, Dr. Germaniuk was

unable to opine as to a cause of death that was more

specific than asphyxia.

The autopsy report listed the time of death as 11:15

p.m. on December 29, based on a test of Tenney's vitreous

potassium. But according to Dr. Germaniuk, vitreous

potassium is an inaccurate indicator of time of death and

even in 1985, only the “uninformed” would have used

vitreous potassium to determine time of death. Dr.

Germaniuk explained that most other tests for time of

death could not have been employed, because Tenney's

9

body had been found in the frigid waters of the Mahoning

River. And though the time of death could possibly have

been determined based on gastric emptying, i.e., by

measuring the contents of the stomach, in order to make a

reasonable calculation one has to know the time of the

victim's last meal. Assuming that Tenney last ate around

4:00 or 4:30 p.m. (when she and Thomas had dinner after

the movie), Dr. Germaniuk estimated the time of death as

between 5:00 and 10:30 p.m. But if Tenney had eaten

later, his estimate of her time of death would have been

different.

The prosecution in questioning Dr. Germaniuk noted

several times that police officers had found a telephone

type of cord in the trunk of Tenney's car. The cord was

one-half centimeter wide and had no weaving pattern.

The ligature marks were also one-half centimeter wide

and showed no weave pattern. According to Dr.

Germaniuk, the cord could have been used to make the

ligature marks on Tenney's neck and wrists, but because

the cord was not different from thousands of other cords,

he was unable to definitively say that the cord in the

trunk was used on Tenney.

Dr. Germaniuk testified that the autopsy team did not

examine the body for signs of sexual trauma or assault.

DNA and Fingerprint Evidence

When Adams was arrested in late 1985, police officers

obtained samples of his pubic hair, saliva, and blood.

Samples were also obtained from Landers, Passarello, and

Tenney, and semen was found on a vaginal swab taken

from Tenney. The samples from Adams, Landers, and

Passarello were compared to the samples taken from

Tenney.

The semen on the swab came from a “type B

nonsecretor.” Passarello is a type A secretor, and Landers

was a type B secretor. Thus, blood testing in 1986

eliminated Passarello and Landers as the semen source.

Adams, however, is a type B nonsecretor. Four percent

of African–Americans are type B nonsecretors. Thus, the

10

blood evidence at that time did not definitively prove that

Adams, an African–American, was the source of the

vaginal semen, but it placed him within the population of

possible sources.

The potholder in Adams's apartment contained hair

from an African–American and from a Caucasian with red

hair, as well as pubic hair. Gina Tenney was Caucasian

and had red hair. The red hair and pubic hair were

consistent with Tenney's. The sample of African–

American hair was small fragments and was not

sufficient for comparison purposes.

Police officers found fingerprints of evidentiary value

only on the television that was in Adams's apartment.

Investigators were able to lift nine usable prints from the

television. Four prints matched Adams's. The other five

could not be matched to Tenney, Adams, or Landers.

Despite the suspicions that Adams may have been

involved in Tenney's death, the investigation into

Tenney's death went cold in 1986. In January 1986,

Adams was charged with one count of receiving stolen

property based on the discovery of Tenney's ATM card in

his jacket pocket. The grand jury, however, later declined

to indict Adams on the stolen-property charge.

Police officers kept Adams in custody because he was a

suspect in a rape that had occurred in nearby Boardman,

Ohio. In November 1986, Adams was convicted in

Mahoning County Common Pleas Court of kidnapping,

rape, and aggravated robbery in that case. He served

almost 18 years in prison, and he was released on parole

on April 21, 2004.

The Investigation Resumes

In 2007, more than 20 years after Tenney's death, the

Ohio attorney general invited police departments to

submit cold-case evidence to the Ohio Bureau of Criminal

Identification and Investigation (“BCI”) laboratory for

DNA testing. The Youngstown police department

submitted evidence from the Tenney case.

11

The police department submitted Tenney's underwear

and vaginal swab for DNA testing and submitted a fresh

DNA sample from Passarello. Because Tenney and

Landers were both deceased, the department forwarded

samples from 1986 that were still on file. Police officers

also took a fresh DNA sample from Adams and submitted

that to BCI.4

Based on the DNA analysis, Adams could not be

excluded as the source of the DNA on the vaginal swab or

the underwear. The odds that the DNA on the swab came

from someone other than Adams were 1 in

38,730,000,000,000. The odds that the DNA on the

underwear came from someone other than Adams were 1

in 63,490,000,000,000,000,000.

DNA analysis excluded Landers as the source of the

DNA on the swab and the underwear.

Passarello's DNA was found on Tenney's underwear,

but his DNA was not found in the vaginal-semen sample.

Procedural History

Almost three and one-half years after he was released

on parole for the Boardman rape and related convictions,

police officers arrested Adams and charged him with

aggravated murder in connection with Tenney's 1985

death.

On October 11, 2007, a grand jury returned a fivecount indictment that was later superseded by an

indictment returned on October 17, 2007. Count One

charged Adams with aggravated felony murder (R.C.

2903.01(B)) with a single death-penalty specification, that

Tenney's murder was committed in the course of or

immediately after committing or attempting to commit

rape, aggravated burglary, aggravated robbery, and

kidnapping. R.C. 2929.04(A)(7). Count Two charged

Adams with rape (R.C. 2907.02(A)(2)), with a violentsexual-predator specification under R.C. 2941.148(A). The

remaining counts of the indictment set forth charges for

aggravated burglary (R.C. 2911.11(A)), aggravated

12

robbery (R.C.

2905.01(A)).

2911.01(A)),

and

kidnapping

(R.C.

See State v. Adams, 144 Ohio St.3d 429, 2015 Ohio 3954, 45 N.E.3d 127, ¶¶ 471.

Defendant was convicted of Aggravated Murder; and the Capital

Specification, being the Principal Offender. (Trial Tr., Vol. IV, at 794; Verdict

Form Nos. 1, 1A.) The jurors were polled and each agreed with the verdicts,

including each alternate. (Trial Tr., Vol. IV, at 795-796, 803-809.)

II.

Sentencing Phase

During the sentencing (mitigation) phase, Defendant presented the

testimony of six witnesses. (Sentencing Phase Transcript, October 28, 2008,

before the Honorable Timothy E. Franken, at 33-122.) At the conclusion of

the evidence, the jury recommended a sentence of death for Defendant. (Sent.

Tr., at 189.) Thereafter, the trial court imposed a sentence of death upon

Defendant. (Sent. Tr., at 193.)

III.

Direct Appeal

This Court affirmed Defendant’s conviction and death sentence. See

State v. Adams, 7th Dist. No. 08 MA 246, 2011 Ohio 5361.

Defendant timely appealed as of right to the Supreme Court of Ohio.

See State v. Adams, 144 Ohio St.3d 429, 2015 Ohio 3954, 45 N.E.3d 127.

On October 1, 2015, the Supreme Court of Ohio vacated Defendant

capital specification, and remanded his case for re-sentencing. See id.

13

IV.

Murnahan Appeal

On January 12, 2012, Defendant filed an Application for Reopening

pursuant to Appellate Rule 26(B) and State v. Murnahan, 63 Ohio St.3d 60

(1992). This Court denied Defendant’s application because Defendant failed

to establish that appellate counsel was constitutionally ineffective. See State

v. Adams, 7th Dist. 08 MA 246, 2012 Ohio 2719.

On May 19, 2016, the Supreme Court of Ohio affirmed this Court’s

denial of Defendant’s Application for Reopening. See State v. Adams, 146

Ohio St.3d 232, 2016 Ohio 3043, 54 N.E.3d 1227.

V.

State Postconviction

On June 11, 2012, Defendant-Petitioner Bennie Lee Adams filed a

timely Petition for Postconviction Relief pursuant to R.C. 2953.21.

On October 1, 2015, however, the Supreme Court of Ohio vacated

Defendant’s capital specifications and remanded his case back to the trial

court for re-sentencing. Defendant was re-sentenced to 20-years to Life.

On June 5, 2017, Defendant filed a timely subsequent Petition for

Postconviction Relief pursuant to R.C. 2953.21.

On July 11, 2017, the State filed a Motion for Summary Judgment.

The trial court denied Defendant’s post-conviction petition on September 25,

2018.

14

Defendant timely appealed to the Ohio Court of Appeals for the

Seventh Appellate District. The Seventh District affirmed the denial of

Defendant’s post-conviction petition. See State v. Adams, 7th Dist. Mahoning

No. 18 MA 116, 2019 Ohio 4090, discretionary appealed denied, State v.

Adams, 2020 Ohio 122, 137 N.E.3d 1214.

The State of Ohio now responds to Defendant’s Petition for a Writ of

Certiorari.

15

REASONS FOR DENYING THE WRIT

II.

A Substitute Coroner’s Testimony Regarding the

Victim’s Cause of Death, Which is Based Upon the

Substitute

Coroner’s

Observations

and

Conclusions, Does Not Implicate the Sixth

Amendment.

As for Defendant’s first question presented, he contends that Dr.

Humphrey Germaniuk’s testimony and the admission of the autopsy report

violated his Sixth Amendment right to confrontation because Dr. Germaniuk

did not perform Gina Tenney’s autopsy. To the contrary, Dr. Belinky’s

autopsy report is a non-testimonial business record, and Dr. Germaniuk

testified to his own expert opinions and conclusions regarding Gina Tenney’s

cause of death. Therefore, Dr. Germaniuk’s testimony and the admission of

Dr. Belinky’s autopsy report did not violate Defendant’s Sixth Amendment

right to confrontation.

A.

THE SIXTH AMENDMENT’S

CONFRONTATION CLAUSE

APPLIES ONLY TO TESTIMONIAL HEARSAY.

The Confrontation Clause of the Sixth Amendment to the United

States Constitution provides: “In all criminal prosecutions, the accused shall

enjoy the right * * * to be confronted with the witnesses against him.” Sixth

Amendment to the U.S. Constitution; see Pointer v. Texas, 380 U.S. 400, 403,

85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).

In Crawford v. Washington, this Court held that the Confrontation

Clause bars “admission of testimonial statements of a witness who did not

16

appear at trial unless he was unavailable to testify, and the defendant had a

prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S.

36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The subsequent case law

attempts to define which statements are “testimonial,” because only these

statements “cause the declarant to be a ‘witness’ within the meaning of the

Confrontation Clause.” Davis v. Washington, 547 U.S. 813, 821, 126 S.Ct.

2266, 165 L.Ed.2d 224 (2006), quoting Crawford, 541 U.S. at 51. And “[i]t is

the testimonial character of the statement that separates it from other

hearsay that, while subject to traditional limitations upon hearsay evidence,

is not subject to the Confrontation Clause.” Davis, 547 U.S. at 821.

The testimonial statements in Crawford that this Court narrowed in

on were those “interrogations by law enforcement * * * solely directed at

establishing the facts of a past crime, in order to identify (or provide evidence

to convict) the perpetrator.” Davis, 547 U.S. at 826, quoting Crawford, 541

U.S. at 53.

1.

A SUBSTITUTE CORONER’S

TESTIMONY DOES NOT VIOLATE

THE SIXTH AMENDMENT’S RIGHT

TO CONFRONTATION WHEN THE

ORIGINAL CORONER IS UNAVAILABLE.

A substitute coroner’s testimony regarding the decedent’s cause of

death does not amount to testimonial hearsay.

17

a.)

Melendez-Diaz v. Massachusetts (2009).

In Melendez-Diaz, the defendant was charged with distributing and

trafficking in cocaine. See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129

S.Ct. 2527, 2530, 174 L.Ed.2d 314 (2009). At trial, the prosecution placed into

evidence cocaine seized by police, and three “certificates of analysis” showing

the results of the forensic analysis performed on the cocaine. See id. at 2531.

The certificates reported the weight of the substance, and that the substance

found was cocaine. See Melendez-Diaz, 129 S.Ct. at 2531. The certificates

were signed by the analysts, and sworn to before a notary public pursuant to

state law. See id., citing Mass. Gen. Laws, ch. 111, §13. The defendant

objected to their admission into evidence without the analysts’ testimony,

because this deprived him the opportunity to cross-examination them. See id.

The certificates were admitted and the defendant was convicted. See id.

This Court was faced with a simple and straight-forward issue—do the

“certificates of analysis” fall into the “core class of testimonial statements”

previously outlined in Crawford? This Court answered in the affirmative, and

stated that while Massachusetts law defines them as “certificates,” they are

nothing more than “affidavits.” See id. at 2532.

This Court reasoned that “[t]he ‘certificates’ are functionally identical

to live, in-court testimony, doing ‘precisely what a witness does on direct

examination.’” See id., quoting Davis, 547 U.S.at 830. “Here, moreover, not

only were the affidavits ‘made under circumstances which would lead an

18

objective witness reasonably to believe that the statement would be available

for use at a later trial,’ but under Massachusetts law the sole purpose of the

affidavits was to provide ‘prima facie evidence of the composition, quality,

and the net weight’ of the analyzed substance[.]” (Emphasis sic.) (Internal

citations omitted.) Melendez-Diaz, 129 S.Ct. at 2532.

Thus, under Crawford, Melendez-Diaz was entitled to be confronted by

the analysts at trial, unless they were “unavailable” and he had a prior

opportunity to cross-examination them. See id. at 2532, citing Crawford, 541

U.S. at 54.

b.)

Bullcoming v. New Mexico (2011).

Thereafter, this Court revisited the issue of testimonial hearsay in

relation to laboratory test results in Bullcoming v. New Mexico. There, the

defendant was charged and convicted of driving while intoxicated. See

Bullcoming v. New Mexico, 564 U.S. 647, 131 S.Ct. 2705, 2709, 180 L.Ed.2d

610 (2011). The crux of the state’s case against the defendant was a forensic

laboratory report certifying that his blood-alcohol concentration was well

above the threshold required for an aggravated DWI. See id. At trial, the

analyst who performed the testing did not testify, but instead, another

analyst who was familiar with the laboratory’s testing procedures testified.

See id. The analyst had neither participated in nor observed the testing of the

defendant’s blood sample. See id.

19

The New Mexico Supreme Court concluded that the analysis was

“testimonial,’ but the analyst’s testimony satisfied the constitutional

requirements.” Bullcoming, 131 S.Ct. at 2709-2710.

This Court granted certiorari to determine “whether the Confrontation

Clause permits the prosecution to introduce a forensic laboratory report

containing a testimonial certification—made for the purpose of proving a

particular fact—through the in-court testimony of a scientist who did not sign

the certification or perform or observe the test reported in the certification.”

Bullcoming, 131 S.Ct. at 2710.

This Court held “that surrogate testimony of that order does not meet

the constitutional requirement. The accused’s right is to be confronted with

the analyst who made the certification, unless that analyst is unavailable at

trial, and the accused had an opportunity, pretrial, to cross-examine that

particular scientist.” Id.

While

Defendant

previously

argued

that

Melendez-Diaz

and

Bullcoming were determinative here, Justice Sotomayor’s concurring opinion

clearly demonstrates otherwise:

Second, this is not a case in which the person

testifying is a supervisor, reviewer, or someone else

with a personal, albeit limited, connection to the

scientific test at issue. Razatos conceded on crossexamination that he played no role in producing the BAC

report and did not observe any portion of Curtis Caylor’s

conduct of the testing. App. 58. The court below also

recognized Razatos’ total lack of connection to the test at

issue. 226 P.3d, at 6. It would be a different case if, for

example, a supervisor who observed an analyst

20

conducting a test testified about the results or a report

about such results. We need not address what degree of

involvement is sufficient because here Razatos had no

involvement whatsoever in the relevant test and report.

(Emphasis added.) Id. at 2722 (Sotomayor, J., concurring in part). Thus,

Melendez-Diaz and Bullcoming are both distinguishable from the facts here,

because Dr. Germaniuk had “a personal, albeit limited, connection” to Gina

Tenney’s autopsy.

c.)

Williams v. Illinois, 132 S.Ct. 2221 (2012).

Later in Williams v. Illinois, this Court addressed whether a state

rule of evidence allowing an expert to testify about DNA results that were

performed by another analyst, absent a prior opportunity to cross-examine

the analyst, violated the Confrontation Clause. See Williams v. Illinois, 567

U.S. 50, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012). The Supreme Court of Illinois

previously found that Williams’s right to confrontation was not violated. See

People v. Williams, 238 Ill.2d 125, 150-151 (2010).

In Williams, the victim’s rape kit was sent to the Illinois State Police

(ISP) Crime Lab for testing and analysis. See id. at 129. A state forensic

biologist confirmed the presence of semen, then sealed the swabs and placed

the evidence in a secure freezer. See id. at 130.

The defendant was later arrested on an unrelated matter, and the

police obtained a blood sample through a court order. See id. Another forensic

scientist extracted the defendant’s DNA profile and entered it into the ISP

Crime Lab database. See id. Meanwhile, the samples from the victim’s rape

21

kit were sent for DNA analysis to Cellmark Diagnostic Laboratory in

Germantown, Maryland. See Williams, 238 Ill.2d at 130-131. Cellmark

returned the vaginal swabs and blood standard to the ISP Crime Lab after

Cellmark derived a DNA profile for the person whose semen was recovered.

See id. at 131.

According to ISP forensic biologist Sandra Lambatos, the DNA profile

received from Cellmark matched the defendant’s DNA profile from the blood

sample in the ISP database. The victim identified the defendant in a line up,

and he was then arrested. See Williams, 238 Ill.2d at 131.

At trial, Lambatos explained polymerase chain reaction (PCR) testing,

and stated that it is one of the most modern types of DNA testing available,

and is generally accepted in the scientific community. See id. Lambatos

further testified that it is a commonly accepted practice for one DNA expert

to rely on the records of another DNA analyst to complete her work. See id. at

132.

Lambatos took the DNA profile from Cellmark and matched that to the

defendant’s DNA profile. See id. Lambatos testified that the DNA profile

found in the semen from the vaginal swabs matched the defendant’s DNA

profile. See id. 132-133. In arriving at this conclusion, Lambatos stated that

looked at Cellmark’s report, and interpreted the data: “I did review their

data, and I did make my own interpretations so I looked at what * * * they

sent to me and did make my own determination, my own opinion.” Id. at 133.

22

Lambatos testified to her conclusion based upon information in Cellmark’s

report, but the report itself was not introduced into evidence. Williams, 238

Ill.2d at 133.

The defendant was convicted after a bench trial of aggravated criminal

sexual assault, aggravated kidnapping, and aggravated robbery. See id. at

134.

The Supreme Court of Illinois concluded that Williams’s right to

confrontation was not violated by Lambatos’ testimony. See id. at 150-151.

This Court affirmed the Supreme Court of Illinois’ decision and agreed

that Lambatos’ testimony did not violate the defendant’s rights to

confrontation. See Williams, 132 S.Ct. at 2223. While a majority of the Court

found that the testimony did not violate the defendant’s right to

Confrontation, this Court was divided over its reasoning. See Williams,

supra; accord United States v. Garvey, 688 F.3d 881 (7th Cir. 2012).

2.

THE SUPREME COURT OF

OHIO RIGHTFULLY CONCLUDED

THAT A SUBSTITUTE CORONER’S

TESTIMONY DOES NOT VIOLATE THE

CONFRONTATION CLAUSE WHEN THE

ORIGINAL CORONER IS UNAVAILABLE.

In State v. Maxwell, the Supreme Court of Ohio held that “[a]n autopsy

report that is neither prepared for the primary purpose of accusing a targeted

individual nor prepared for the primary purpose of providing evidence in a

criminal trial is nontestimonial, and its admission into evidence at trial

under Evid.R. 803(6) as a business record does not violate a defendant’s Sixth

23

Amendment confrontation rights.” State v. Maxwell, 139 Ohio St.3d 12, 2014

Ohio 1019, 9 N.E.3d 930, syllabus; see State v. Craig, 110 Ohio St.3d 306,

2006 Ohio 4571, 853 N.E.2d 621, ¶¶ 81-88.

First, even before Maxwell, supra, the Supreme Court of Ohio

previously concluded that an autopsy report is a non-testimonial business

record. See Craig, supra at ¶¶ 81-88. Further, this Court’s decisions in

Melendez-Diaz, Bullcoming, and Williams did not undermine the Supreme

Court of Ohio’s previous analysis in Craig. See id.

Two years before Defendant was tried and convicted of capital murder,

the Supreme Court of Ohio held that “autopsy records are admissible as

nontestimonial business records.” Craig, 110 Ohio St.3d at 322. The Supreme

Court of Ohio concluded that the “expert testimony about the autopsy

findings, the test results, and her opinion about the cause of death did not

violate Craig’s confrontation rights.” Id.

The Supreme Court of Ohio, however, remanded the case to the trial

court because the defendant was sentenced under Ohio law that was not yet

in effect when the offenses were committed. Id. at 327. The defendant

pursued a second appeal after the trial court resentenced him. See State v.

Craig, Case No. 2006-1806. After both parties filed their merit briefs, the

Supreme Court of Ohio sua sponte ordered the parties to file supplemental

briefs to address two issues:

1.) Whether the introduction of the autopsy report completed on

Roseanna Davenport violated Donald Craig’s Sixth

24

Amendment right to confrontation under Melendez-Diaz v.

Massachusetts, 129 S.Ct. 2527 (2009).

2.) Whether Dr. Kohler, a medical examiner who did not conduct

the autopsy of Roseanna Davenport, properly testified as to

Davenport’s cause of death in view of Melendez-Diaz v.

Massachusetts.

The Supreme Court of Ohio later stayed briefing until this Court decided

Bullcoming v. New Mexico, and again for Williams v. Illinois.

On December 14, 2012, Donald L. Craig passed away; thus, the

Supreme Court dismissed the case as being moot on January 11, 2013. The

Supreme Court of Ohio’s decision in Craig remained controlling. In Craig, the

Ohio Court previously found that the medical examiner’s testimony did not

deny Craig his right to confrontation, even though the medical examiner did

not perform the autopsy. See Craig, 110 Ohio St.3d at 320. The Ohio Court

reasoned that the autopsy report was admissible pursuant to R.C. 313.10

(certified records of a coroner are public records and shall be received as

evidence in any criminal court), and as a business record under Evidence

Rule 803(6). See id. “An autopsy report, prepared by a medical examiner and

documenting objective findings, is the ‘quintessential business record.’” Id.,

quoting Rollins v. State, 161 Md.App. 34, 81, 866 A.2d 926 (2005).

The Ohio Court properly reasoned that “[t]he essence of the business

record hearsay exception contemplated in Crawford is that such records or

statements are not testimonial in nature because they are prepared in the

ordinary course of regularly conducted business and are ‘by their nature’ not

25

prepared for litigation.” (Emphasis added.) Craig, 110 Ohio St.3d at 321,

quoting People v. Durio, 7 Misc.3d 729, 734, 794 N.Y.S.2d 863 (2005).

Furthermore, autopsy reports are nontestimonial, because their

primary purpose is to document a decedent’s cause of death for public

recordkeeping rather than “for the purpose of establishing or proving some

fact at trial.” Melendez-Diaz, 557 U.S. at 324. By law, Ohio coroners are

required to “keep a complete record of an * * * fill in the cause of death on the

death certificate, in all cases coming under [their] jurisdiction.” R.C. 313.09.

In accordance with Craig, the Seventh District Court of Appeals

followed Craig in State v. Mitchell, 7th Dist. Columbiana No. 05 CO 63, 2008

Ohio 1525. In Mitchell, the Seventh District concluded that “Craig still

stands for the proposition that an autopsy is a business record, is not

hearsay, and does not violate any right to confront the maker of that record.”

Mitchell, supra at ¶ 104.

In response to Defendant’s Application to Reopen his appeal, the

Supreme Court of Ohio “specifically concluded that an autopsy report is nontestimonial evidence under Crawford, as it is not solely made at the behest of

police in order to convict the particular defendant.” (Emphasis sic.) Adams,

2012 Ohio 2719, ¶ 20, citing Craig, 110 Ohio St.3d at 321-321; accord State v.

Zimmerman, 8th Dist. Cuyahoga No. 96210, 2011 Ohio 6156, ¶ 46; State v.

Monroe, 8th Dist. Cuyahoga No. 94768, 2011 Ohio 3045, ¶ 56; State v. Hardin,

4th Dist. Pike No. 10 CA 803, 2010 Ohio 6304, ¶ 20.

26

Again, nothing in Melendez-Diaz, Bullcoming, or Williams undermined

the Supreme Court of Ohio’s previous analysis and conclusion in Craig.

Nevertheless, in State v. Maxwell, the Supreme Court of Ohio held that

“[a]n autopsy report that is neither prepared for the primary purpose of

accusing a targeted individual nor prepared for the primary purpose of

providing evidence in a criminal trial is nontestimonial, and its admission

into evidence at trial under Evid.R. 803(6) as a business record does not

violate a defendant’s Sixth Amendment confrontation rights.” Maxwell, at

syllabus.

Second, Dr. Humphrey Germaniuk’s testimony did not violate

Defendant’s right to confrontation because his opinions were based upon his

own review of the available evidence and records, including a video of the

actual autopsy and the coroner’s report that was properly admitted (without

an objection from Defendant). See Adams, 146 Ohio St.3d 232, at ¶¶ 3-7.

Ohio Evidence Rule 803 states that “facts or data in the particular case

upon which an expert bases an opinion or inference may be those perceived

by the expert or admitted in evidence at the hearing.” OH. Evid.R. 803. Thus,

“[i]t has been long accepted that an expert witness may voice an opinion

based on facts concerning the events at issue in a particular case even if the

expert lacks first-hand knowledge of those facts.” Williams, 132 S.Ct. at 2233.

Accordingly, an expert may opine about evidence that was generated by

someone other than himself.

27

Here, Dr. Humphrey Germaniuk testified in a similar manner to that

in Craig and Mitchell, supra.

At trial, Dr. Humphrey Germaniuk testified as to Gina Tenney’s cause

and manner of death even though he did not perform the autopsy, because

Dr. Nathan Belinky, the county coroner who had performed Gina Tenney’s

autopsy, was deceased. (Trial Tr., at 402, 445.)

Prior to his testimony, Dr. Germaniuk reviewed “a file including

photographs as well as copies of evidence, the autopsy report, the

microscopic reports, and that was basically it. There was a narrative

from the scene investigators.” (Trial Tr., at 403.) Dr. Germaniuk also

reviewed the autopsy video. (Trial Tr., at 404; State’s Exhibit No. 91.)

Dr. Germaniuk testified that Gina Tenney suffered a contusion to her

upper right lip, and some abrasions or scrapes on the front part of her chin.

(Trial Tr., at 406; State’s Exhibit Nos. 9, 10.) She also suffered abrasions to

the left side of her chin; abrasions on her breast; and a faint line across her

neck. (Trial Tr., at 406; State’s Exhibit No. 11.)

Dr. Germaniuk observed a couple of irregularly scrapes or abrasions

on her abdomen, faint bruising around her right wrist, scrapes to her

abdomen, some scrapes on her breast, and on both the left and right wrists

and forearms; two bands of contusion or bruising. (Trial Tr., at 406; State’s

Exhibit Nos. 12, 13, 14.)

28

According to the death certificate, Gina Tenney’s immediate cause of

death was suffocation due to traumatic asphyxiation. (Trial Tr., at 408.) Dr.

Germaniuk, however, testified that he would have determined the cause of

death to be asphyxia. (Trial Tr., at 408.) Dr. Germaniuk explained that if a

person died from drowning, the body would take in an air and water mixture

from breathing the water into their lungs, and would see a foam cone. (Trial

Tr., at 410.) Here, there was no foam cone detected on Gina Tenney. (Trial

Tr., at 411.)

Dr. Germaniuk testified, “we have evidence of smothering. You can

take a look at the contusion on the lips. If you take a look at the marks about

the chin, this is certainly consistent with a hand or an object placed over the

face. We certainly have what appears to be ligature strangulation with that

7-inch band by quarter-inch band about the neck. With that we can exclude

mechanical[.]” (Trial Tr., at 417.)

Dr. Germaniuk also observed blood spots in her eyes (whites of the

eyes), (Trial Tr., Vol. II, at 418.) and ligature marks on her wrists that could

have been caused from being bound or tied up. (Trial Tr., at 422.)

Dr. Germaniuk stated that the telephone cord recovered from Gina’s

vehicle could have caused the marks on her neck, and the bruises on her face

could have been caused by someone hitting her in the face or trying to

smother her. (Trial Tr., at 423-424.)

29

Dr. Germaniuk concluded that based on the evidence he reviewed, the

cause of Gina Tenney’s death was likely a combination of smothering

(asphyxia) and the ligature. (Trial Tr., at 445.) Dr. Germaniuk further

concluded that Gina Tenney’s death was a homicide. Trial Tr., at 446.)

Thus, Dr. Germaniuk did not merely summarize Dr. Belinky’s original

conclusion regarding Gina Tenney’s cause of death, but instead offered his

own conclusions based upon his review of the evidence.

Here,

Dr.

Germaniuk’s

conclusions

were

based

upon

the

nontestimonial materials that he reviewed prior to trial, including “a file

including photographs as well as copies of evidence, the autopsy report,

the microscopic reports, and that was basically it. There was a narrative

from the scene investigators.” (Trial Tr., at 403.) Dr. Germaniuk also

reviewed the autopsy video. (Trial Tr., at 404; State’s Exhibit No. 91.)

Furthermore, the Supreme Court of Ohio likewise concluded that Dr.

Germaniuk’s testimony and the admissible of the autopsy report did not

violate the Confrontation Clause. See Adams, 146 Ohio St.3d at 233-234.

Therefore, Dr. Germaniuk’s testimony and the admission of Dr.

Belinky’s autopsy report did not violate Defendant’s Sixth Amendment right

to confrontation, because Dr. Germaniuk testified to his own expert opinions

and conclusions regarding Gina Tenney’s cause of death, and the autopsy

report is nontestimonial.

30

Conclusion

This Court should deny the petition for writ of certiorari.

Respectfully submitted,

/s/ Paul J. Gains

PAUL J. GAINS

(Ohio Reg. No. 0020323)

Mahoning County Prosecutor

/s/ Ralph M. Rivera

RALPH M. RIVERA

(Ohio Reg. No. 0082063)

Assistant Prosecutor

* Counsel of Record

Mahoning County Prosecutor’s Office

21 W. Boardman Street, 6th Floor

Youngstown, OH 44503

(330) 740-2330

pgain@mahoningcountyoh.gov

rrivera@mahoningcountyoh.gov

COUNSEL FOR RESPONDENT

31