Opposition Brief — Duane Allen Short, Petitioner v. Ohio

No. 21-5232

Capital Case

_______________________________________________________

In the Supreme Court of the United States

________________

DUANE SHORT, Petitioner

v.

STATE OF OHIO, Respondent

________________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF OHIO

________________

BRIEF IN OPPOSITION

________________

MATHIAS H. HECK, JR.

Montgomery County Prosecuting Attorney

ANDREW T. FRENCH

Assistant Prosecuting Attorney

Counsel of Record

Montgomery County Prosecutor’s Office

301 West Third Street, Suite 500

P.O. Box 972

Dayton, OH 45422

(937) 225-4117

frencha@mcohio.org

Counsel for Respondent, the State of Ohio

This is a Capital Case

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..........................................................................

iii-iv

RESTATEMENT OF THE CASE ..................................................................

1-2

REASONS FOR DENYING THE PETITION ...............................................

2-7

CONCLUSION ...............................................................................................

7

ii

TABLE OF AUTHORITIES

Cases

Caldwell v. Mississippi, 472 U.S. 320 (1985) ......................................................

6

Gapen v. Robinson, S.D. Ohio No. 3:08-cv-280, 2017 WL 3524688

(Aug. 15, 2017) ......................................................................................................

6

Hurst v. Florida, 577 U.S. 92 (2016) ...................................................................

2, 4

Ring v. Arizona, 536 U.S. 584 (2002) .................................................................

4

State v. Belton, 149 Ohio St.3d 165, 74 N.E.3d 319 (2016) ...............................

3

State v. Ford, 158 Ohio St.3d 139, 140 N.E.3d 616 (2019) ................................

3

State v. Froman, 162 Ohio St.3d 435, 165 N.E.3d 1198 (2020) .........................

3

State v. Goff, 154 Ohio St.3d 218, 113 N.E.3d 490 (2018) .................................

3

State v. Graham, __ Ohio St.3d __, __ N.E.3d __, 2020 WL 7391565

(December 17, 2020) .............................................................................................

3

State v. Hundley, 162 Ohio St.3d 509, 166 N.E.3d 1066 (2020) ........................

3

State v. Mason, 153 Ohio St.3d 476, 108 N.E.3d 56 (2018) ............................... 3, 5, 6

State v. Rogers, 28 Ohio St.3d 427, 504 N.E.2d 52 (1986) .................................

5, 6

State v. Short, 129 Ohio St.3d 360, 952 N.E.2d 1121 (2011) .............................

1

State v. Short, 154 Ohio St.3d 1430, 111 N.E.3d 1191 (2018) ...........................

2

State v. Tench, 156 Ohio St.3d 85, 123 N.E.3d 955 (2018) ................................

3

State v. Wilks, 154 Ohio St.3d 359, 114 N.E.2d 1092 (2018) .............................

3

State v. Worley, __ Ohio St.3d __, __ N.E.3d __, 2021 WL 2692212

(July 1, 2021) ........................................................................................................

State ex rel. O’Malley v. Collier-Williams, 153 Ohio St.3d 553,

108 N.E.3d 1082 (2018) ........................................................................................

iii

3

3

Rules

Rule 33 of the Ohio Rules of Criminal Procedure ..............................................

2

Statutes

Ohio Rev. Code § 2929.03(B) ...............................................................................

4

Ohio Rev. Code § 2929.03(C)(2) ...........................................................................

5

Ohio Rev. Code § 2929.03(D)(2) ...........................................................................

5

iv

RESTATEMENT OF THE CASE

After his wife left him, Petitioner Duane Short became so enraged that he

tracked her down in a town two counties away, borrowed his boss’s truck and put on

a disguise, enlisted his teenage son’s help in sawing the barrel off a shotgun, then

went to his estranged wife’s newly-rented home and shot her male friend before

busting down the bathroom door and shooting his wife in the chest. For his crimes,

Short was indicted by an Ohio grand jury on three counts of aggravated murder with

aggravating circumstances specifications, along with counts of breaking and

entering, aggravated burglary, unlawful possession of a dangerous ordinance, and six

firearm specifications. He was found guilty on all counts and specifications. App. B,

A-3. Following further deliberations, the jury found unanimously that the

aggravating circumstances outweighed the mitigating factors beyond a reasonable

doubt, and recommended a sentence of death. App. B, A-3. The trial court adopted

the jury’s recommendation and sentenced Short to death. App. B, A-3. On direct

appeal to the Supreme Court of Ohio, Short’s conviction and death sentence was

affirmed. State v. Short, 129 Ohio St.3d 360, 952 N.E.2d 1121 (2011).

While his direct appeal was pending, Short filed with the trial court a petition

for post-conviction relief, which he later amended nine times over the course of the

next six-and-a-half years. The trial court overruled Short’s petition, and Ohio’s

Second District Court of Appeals affirmed the trial court’s decision.

Both the

Supreme Court of Ohio and this Court declined to accept the matter for further

1

review. See State v. Short, 154 Ohio St.3d 1430, 111 N.E.3d 1191 (2018), cert. denied

139 S.Ct. 2013 (May 13, 2019).

Back in the trial court, Short filed a motion asking for leave to file a motion for

a new mitigation trial under Rule 33 of the Ohio Rules of Criminal Procedure. App.

B, A-3; App. C. Short based his motion on Hurst v. Florida, 577 U.S. 92 (2016), in

which this Court found that Florida’s capital punishment structure violated the Sixth

Amendment right to have a jury determine a capital defendant’s eligibility to be

sentenced to death. App.B, A-3 and A-8. In Short’s mind, Ohio’s capital punishment

structure suffers from the same deficiencies as Florida’s and should, therefore, be

struck down for the same reasons outlined in Hurst. The trial court disagreed and so

did Ohio’s Second District Court of Appeals. App. B, A-4 and A-8. The Supreme

Court of Ohio declined to accept jurisdiction over Short’s appeal of the court of

appeals’ decision. App. A

Short’s petition for writ of certiorari is now before this Court for consideration.

REASONS FOR DENYING THE PETITION

To what extent, if any, does this Court’s decision in Hurst v. Florida, 577 U.S.

92 (2016), apply to entitle Ohio capital defendants to a new mitigation trial because

of an alleged violation of the defendant’s Sixth Amendment right to have a jury make

the findings necessary to support a sentence of death? This question has come before

the Ohio Supreme Court on several occasions, and each time that court has concluded

that Hurst has no application in Ohio. Duane Short seeks a writ of certiorari because

he does not like that answer, despite the soundness of the Ohio Supreme Court’s legal

2

analysis and the obvious differences between Ohio’s and Florida’s capital sentencing

structure.

This Court’s further review of the state courts’ legal and factual

determinations is unwarranted.

The Ohio Supreme Court first addressed the issue, in part, in State v. Belton,

149 Ohio St.3d 165, 74 N.E.3d 319 (2016), when it suggested that Hurst had no

application to Ohio’s capital-sentencing scheme because Ohio’s scheme does not suffer

from the same constitutional flaws as the Florida scheme at issue in Hurst. Id. at

176, 74 N.E.3d at 336-337. The question was later answered head-on in State v.

Mason, 153 Ohio St.3d 476, 108 N.E.3d 56 (2018), where the Ohio Supreme Court

found that, unlike the Florida capital-sentencing scheme held unconstitutional in

Hurst, “Ohio’s death-penalty scheme * * * does not violate the Sixth Amendment,”

because Ohio’s scheme “ requires the critical jury findings [before a sentence of death

can be imposed] that were not required by the laws in * * * Hurst.” Id. at 482, 108

N.E.3d at 62. Since then, the Ohio Supreme Court has relied on its holding in Mason

on at least nine occasions to reject the argument that Ohio’s capital-sentencing

structure violates the Sixth Amendment right to a jury trial as construed in Hurst.1

1

See, e.g., State v. Froman, 162 Ohio St.3d 435, 466, 165 N.E.3d 1198, 1231 (2020); State

v. Hundley, 162 Ohio St.3d 509, 535, 166 N.E.3d 1066, 1091 (2020); State v. Ford, 158 Ohio

St.3d 139, 226, 140 N.E.3d 616, 709 (2019); State v. Tench, 156 Ohio St.3d 85, 135-136, 123

N.E.3d 955, 1005 (2018); State v. Goff, 154 Ohio St.3d 218, 225, 113 N.E.3d 490, 497 (2018);

State v. Wilks, 154 Ohio St.3d 359, 400, 114 N.E.2d 1092, 1134-1135 (2018); State ex rel.

O’Malley v. Collier-Williams, 153 Ohio St.3d 553, 557-558, 108 N.E.3d 1082, 1087 (2018);

State v. Worley, __ Ohio St.3d __, __ N.E.3d __, 2021 WL 2692212 (July 1, 2021). See also

State v. Graham, __ Ohio St.3d __, __ N.E.3d __, 2020 WL 7391565 (December 17, 2020)

(declining defendant’s request that Mason be overturned).

3

And the Supreme Court of Ohio is correct in distinguishing Ohio’s capital

sentencing scheme from the Florida scheme outlawed in Hurst. This Court ruled in

Hurst that Florida’s death penalty scheme was an unconstitutional infringement on

a defendant’s Sixth Amendment right to a jury trial because it requires the trial

judge, and not the jury, to find the existence of aggravating circumstances before a

sentence of death can be imposed. Id., 577 U.S. at 102-103. But Ohio’s scheme has

no similarity to Florida’s at all. As the Ohio Supreme Court has explained:

The

Sixth

Amendment

provides

that

“[i]n

all

criminal

prosecutions, the accused shall enjoy the right to a speedy and public

trial, by an impartial jury.” This entitles criminal defendants “to a jury

determination of any fact on which the legislature conditions an increase

in their maximum punishment.” Ring [v. Arizona, 536 U.S. 584, 589

(2002)]. See also Hurst [577 U.S. at 619] (“The Sixth Amendment

requires a jury, not a judge, to find each fact necessary to impose a

sentence of death.”). Ohio's death-sentence scheme satisfies this right.

When an Ohio capital defendant elects to be tried by a jury, the

jury decides whether the offender is guilty beyond a reasonable doubt of

aggravated murder and–unlike the juries in Ring and Hurst–the

aggravating-circumstance specifications for which the offender was

indicted. [Ohio Rev. Code § 2929.03(B)]. Then the jury–again unlike in

Ring and Hurst–must “unanimously find[ ], by proof beyond a

reasonable doubt, that the aggravating circumstances the offender was

4

found guilty of committing outweigh the mitigating factors.” [Ohio Rev.

Code § 2929.03(D)(2)]. An Ohio jury recommends a death sentence only

after it makes this finding. Id. And without that recommendation by

the jury, the trial court may not impose the death sentence.

Ohio law requires the critical jury findings that were not required

by the laws at issue in Ring and Hurst. See [Ohio Revised Code §

2929.03(C)(2)]. Ohio's death-penalty scheme, therefore, does not violate

the Sixth Amendment.

Mason, 153 Ohio St.3d at 481-482, 108 N.E.3d at 62-63.

Despite the Ohio Supreme Court’s repeated conclusion that Ohio’s deathpenalty scheme is distinctively different from the Florida scheme found

unconstitutional in Hurst, Short nevertheless makes the extraordinary claim that

“the Ohio Supreme Court has long recognized that Ohio’s capital sentencing statutes

are ‘remarkably similar’ to the Florida statutes invalidated by Hurst and have

consistently interpreted Ohio’s law to acknowledge that trial judges play this

unconstitutional role.” (cert. petition at p. 9) He attempts to back up that claim by

citing State v. Rogers, 28 Ohio St.3d 427, 504 N.E.2d 52 (1986).

To be sure, the Ohio Supreme Court did comment in Rogers that Ohio’s and

Florida’s schemes were “remarkably similar.” Rogers, 28 Ohio St.3d at 430, 504

N.E.2d at 55. But the court later clarified in Mason that “Rogers involved a different

question [than what was confronted in Hurst]. * * * Rogers noted that the systems

are similar in that they both allow for jury recommendations; it did not consider the

5

findings that the jury was required to make before recommending a sentence.”

Mason, 153 Ohio St.3d at 486, 108 N.E.3d at 66. Indeed, a capital defendant who

sought to rely on Rogers to argue that Ohio’s capital sentencing statute was

“remarkably similar” to Florida’s was chastised in federal district court for “ripping

language out of context and using it to prove a proposition not intended by the

author.” Gapen v. Robinson, S.D. Ohio No. 3:08-cv-280, 2017 WL 3524688 *3 (Aug.

15, 2017) (quoting Mag. Judge Merz). Short’s reliance of Rogers, therefore, is “not

only unconvincing, it is unsupported by law.” Id.

Finally, although Short never made an Eighth Amendment argument in the

court of appeals below, he cites here to Caldwell v. Mississippi, 472 U.S. 320 (1985),

in suggesting that his rights under the Eighth Amendment were violated because the

jury was instructed that its sentencing verdict was only a recommendation, thereby

“diminishing the jury’s sense of personal responsibility for its verdict[.]” (cert. petition

at pp. 9-10) But Short is wrong: the jury was never told or instructed during the

sentencing-phase of the trial that its verdict was only a recommendation.2 This

additional contention by Short is unfounded as well.

Simply stated, Duane Short’s attacks on the validity of the jury’s sentencing

verdict are as meritless now as they were when he made them originally and, as the

2

On pages 3 and 4 of his Petition, Short quotes comments made by his counsel and the trial

judge to a small groups of prospective jurors during the preliminary voir dire. But it is

unclear how many, if any, of the prospective jurors who heard these comments were

ultimately seated on the jury. Nevertheless, after the jury had rendered its verdicts in the

trial-phase and were given instructions during the sentencing-phase of trial, the jury was not

told or instructed that its verdict was only a recommendation. See generally Tr. 2493-2496,

2513-2526.

6

Ohio Supreme Court has repeatedly found, this Court’s decision in Hurst v. Florida

did nothing to change that fact. The state courts did not err, therefore, in overruling

Short’s motion for a new mitigation trial.

CONCLUSION

In view of the foregoing law and argument, Duane Short’s petition for writ of

certiorari should be denied.

Respectfully submitted,

MATHIAS H. HECK, JR.

Montgomery County Prosecuting Attorney

/s/ Andrew T. French

ANDREW T. FRENCH

Assistant Prosecuting Attorney

Counsel of Record

Montgomery County Prosecutor’s Office

301 West Third Street, Suite 500

P.O. Box 972

Dayton, OH 45422

(937) 225-4117

frencha@mcohio.org

Counsel for Respondent, the State of Ohio

7

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