Opposition Brief — Cutts v. Ohio

No. 09-1056

in The

Supreme Court of the Gnited States

+

BOBBY LEE CUTTS, JR.,

Petitioner,

Vs.

THE STATE OF OHIO,

Respondent.

°

On Petition For Writ Of Certiorari To

The Court Of Appeals Of Ohio, Stark County

¢

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

¢

JOHN D. FERRERO,

Prosecuting Attorney,

Stark County, Ohio

RONALD MARK CALDWELL*

Ohio Sup. Ct. Reg. No. 0030663

Assistant Prosecuting Attorney

KATHLEEN O. TATARSKY

Ohio Sup. Ct. Reg. No. 0017115

Assistant Prosecuting Attorney

STARK COUNTY PROSECUTOR’S OFFICE

110 Central Plaza, South

Suite 510

Canton, Ohio 44702-1413

(330) 451-7897

FAX: (330) 451-7965

RMCaldwe@co.stark.oh.us

*Counsel of Record for Respondent

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

A jury found Bobby Lee Cutts, Jr., guilty of the mur-

der of his girlfriend, Jessie Marie Davis, who was

nine-months pregnant with his daughter, as well as

guilty of the aggravated murder of their unborn but

viable daughter, Chloe, during a late night visit to her

home. As a result of his convictions, Cutts is serving a

term of imprisonment of life, with parole eligibility

after serving 57 years. The questions presented in his

appeal are:

‘.

Whether Cutts is entitled to this Court’s review

of issues he has raised in the state courts below

that raise no federal claim, apart from a gen-

eralized due process claim, and instead are

primarily challenges to state court application of

state law.

Whether Cutts is entitled to this Court’s review

of issues where he is simply seeking correction of

alleged errors by the state courts below in the

application of relevant law to the facts.

Whether Cutts is entitled to this Court’s review

of issues related to jury selection and composition

when he has chosen not to include as part of the

record on appeal any transcript of the extensive

jury review and selection proceedings.

il

TABLE OF CONTENTS

Page

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pet OR Geo ei iy y 8) by) |: noes ill

PT Oe Oe OMI hi rsirecs vn evecvsécesesavetivtineceiss 1

REASONS FOR DENYING THE WRIT.............. 9

I. Inconsistent Jury Verdicts ........................ 9

Il. Change of Venue — Pretrial Publicity........ 12

EEL. GUPOT Wl BOATCHOG ...6.26ccsivccccensverccveceseesss 17

IV. Lesser Included Jury Instruction — In-

voluntary Manslaughter............................ 18

V. Jury Selection — Ohio Driver’s Licenses... 20

Vi. Gemme SOL TONING sions vnsecccersvccesseessres 24

VIi. Blake’s Hearsay Statements ..................... 26

VIII. Other Acts Evidence — Character Evi-

SE raccckavcrcsbecvocennnctseseucnis vapaeiinitadseleuedson 31

IX. Consecutive Sentences — Allied Offenses

of Similar Import — Merger....................... 33

X. Capital Specifications in Indictment......... 35

CONCLUSION

ill

TABLE OF AUTHORITIES

Page

CASES

Berghuis v. Smith, ___ U.S. ___ (decided March

SO, BOID), BOLO WL LIBPEGSG.....0. cs ccccnccesvnsscesvesevsesese 22

Crawford v. Washington, 541 U.S. 36

CI cate ctepcnrenecec teres oesaeeeeea cetera 27, 29, 30, 31

Davis v. Washington, 547 U.S. 813 (2006)........... 30, 31

Dowling v. United States, 493 U.S. 342 (1990).......... 10

Dunn v. United States, 284 U.S. 390 (1932).............. 10

Duren v. Missouri, 439 U.S. 357 (1979)..................... 22

Estes v. Texas, 381 U.S. 532 (1965)................ 14, 15,16

Hamling v. United States, 418 U.S. 87 (1974)........... 10

Irwin v. Dowd, 366.U3. 717 (1961)........................... 13

Lockett v. Ohio, 438 U.S. 586 (1978) ........ eee 26

Nebraska Press Assn. v. Stuari, 427 U.S. 539

BD cee oa casinos ie Milconh oie sea T OMe cnc ciciincaebwuatawteasanueoscs ements 13

Patton v. Yount, 467 U.S. 1025 (1984) ....................... 14

Sheppard v. Maxwell, 384 US. 333 (1966)....14, 15, 16

Standefer v. United States, 447 U.S. 10 (1980) ......... 10

State v. Cabrales, 118 Ohio St.3d 54, 2008-

eo Me 8 RG |) eee nena 19

State v. Conway, 108 “iio St.3d 214, 2006-

Cinta FO), BER IN Ee De oinccccckscrcccccsccccoscsecescesersevs 20

iV

TABLE OF AUTHORITIES — Continued

Page

State v. Cutts, Stark App. No. 2008 CA00079,

2009-Ohio0-3563, 2009 WL 2170687, appeal

denied, 123 Ohio St.3d 1509, 2009-Ohio-

as rE NS eiiessran sts scenanedetulecincnecevitivrinencane 2

State v. Fulton, 57 Ohio St.3d 120, 566 N.E.2d

ere OEE oo cau cacguacicaundodatessnenes anurieimmaauenenenete 22

State v. Hancock, 108 Ohio St.3d 57, 2006-

ee ee ee DL ee 24

State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-

ees Se LE Be ee demtiesmaaneracsmauinoreus 23

State v. Jones, 91 Ohio St.3d 335, 2001-Ohio-

Pg Fe ee IIE craveicecacrcncuesssssecesdeapacsisinreenoes 22

State v. Lovejoy, 79 Ohio St.3d 440, 1997-Ohio-

ee ee Oe ee aoe vcs nace receccenaiereacan 11

State v. Lynch, 98 Ohio St.3d 514, 2003-Ohio-

— Me Bk eB ene nee een 20

State v. Maurer, 15 Ohio St.3d 239, 473 N.E.2d

768 (1984), cert. denied, 472 U.S. 1012 (1985)....... 14

State v. McKnight, 107 Ohio St.3d 101, 2005-

Ohio-6046, 837 N.E.2d 315, cert. denied, 548

FFE | RRS Rs etolrseenyn RD EOE Ae ROLL EW eh ere 14

State v. Monroe, 105 Ohio St.3d 384, 2005-

SPRUE, SEE © WOME II iii cxeelsi nscccineversreventwnerdices 20

State v. Reynolds, 80 Ohio St.3d 670, 1998-

ER es UE Wt FIO cisco crnccecewicerencasouserecem 35

State v. Siler, 116 Ohio St.3d 39, 2007-Ohio-

oy ef, BB oR | f | SERENA SNM ARANAERE

TABLE OF AUTHORITIES — Continued

Page

State v. Skatzes, 104 Ohio St.3d 195, 2004-

6 fe RO ” ES. ec 24

State v. Steffen, 31 Ohio St.3d 111, 509 N.E.2d

383 (1987), cert. denied, 485 U.S. 916 (1988)......... 26

State v. Thomas, 40 Ohio St.3d 213, 533 N.E.2d

286 (1988), cert. dented, 493 U.S. 826 (1989) ..... 19, 20

State v. Thompson, 33 Ohio St.3d 1, 514 N.E.2d

A rare eis reece seep penden roman cameraceusceeuaes 13

State v. White, 82 Ohio St.3d 16, 1998-Ohio-

363, 693 N.E.2d 772, cert. denied, 525 U.S.

Be ND ares cheocoee detonate selene aerate ceusetadavser si 13

Taylor v. Louistana, 419 U.S. 522 (1975)................... 21

United States v. Buchanan, 213 F.3d 302 (6th

Ra I ore acetal rer aeg ite anate eras eae 22

United States v. Dotterweich, 320 U.S. 277

I haa caren oe re eee eisai aoa as apadoaw ener eee 10

United States v. Odeneal, 517 F.3d 406 (6th Cir.

| TEE SA, PRCA MT RO AIS fe oe Ag oh Weeden aay NRT 23

United States v. Rahman, 189 F.3d 88 (2d Cir.

1999), cert. denied, 528 U.S. 1094 (2000)............... 14

Woodson v. North Carolina, 428 U.S. 280 (1976)....... 26

CONSTITUTIONAL PROVISIONS AND STATUTES

CRIN DE Aes eee a OAM BID crirersces sedcevirasecisunczennsitvotrneses 35

PRIS TAF, EP RUE, 6 PND cori tevccrecerevecisscneeeieuivenses 36

SOUS ay ee IE nadepthiareveepeitannne-ecnaerohureevannnvariiie 36

v1

TABLE OF AUTHORITIES — Continued

Page

Ohio R.C. 2903.01(B) ....000:.0<0+sseoeceursuanseneeeeee 36

Ohio R.C. ZO03B.01(C) ......0<5.<00<05000nescneeweueunenennnnannn

Ohio B.C. 2929.04 A) ....ccc0s<0s:c100ecessnncaesaesanennee 36

Sixth Amendment to the United States Con-

BEICIEIOND 6.0005 <cccccvcwcereasccwswesseseeeuses auERunee 21. Ze

28 U.S.C. §$ 18G3D) ..........0000+000000s0eseeuusenneneeeeee 23

OHIO RULES

Ohio Crim. RB. 16 ......<00ss2cncneccsveocsnseskeseeeee 25

Ohio Evid. R. 403(A)

Ohio Evid. R. 403(B)

Ohio Evid. R. 803(2) ..........++0:s00s<e01ssecessuenne 27

STATEMENT OF CASE

In June of 2007, petitioner, Bobby Lee Cutts, Jr.,

killed Jessie Marie Davis, who was nine months preg-

nant with their unborn yet viable daughter Chloc,

and then dumped them in a field to rot. Eight days

later, when confronted with evidence that contra-

dicted his alibi story, Cutts, a police officer, led the law

enforcement team investigating the young mother’s

disappearance to the spot where he had dragged and

dumped their bodies. A state grand jury indicted

Cutts for the homicides of Jessie Marie Davis and

Chloe. The charges in the indictment were three

counts of aggravated murder with death penalty

specifications, one count of aggravated burglary, two

counts of gross abuse of a corpse, and one count of

child endangering. A jury convicted Cutts of all of the

charged offenses except for the aggravated murder of

Davis, finding him guilty of the lesser offense of mur-

der. After a penalty hearing, the jury recommended a

life sentence with parole eligibility after serving

thirty full years for the two aggravated murder

convictions for Chloe’s death. The trial court accepted

the jury’s recommendation for these two convictions,

but merged the offenses for purposes of sentencing.

This life term of imprisonment was imposed con-

secutively to the other prison sentences imposed for a

sentence of 57 years.

On appeal, the state court of appeals overruled

all of Cutts’ legal claims and affirmed his convictions

2

and sentences. Cutts’ subsequent appeal to the state’s

supreme court was rejected.’

The facts here are extensively detailed in the

opinion of the court of appeals and differ significantly

from the version of events Cutts set forth in his

petition, which was based upon his self-serving testi-

mony at trial, Appendix A, Petition for Writ of Certi-

orari.

When Patricia Porter couldn’t reach her daugh-

ter, Jessie Marie Davis, on the telephone, she went to

her home. Porter was concerned because Jessie was

nine months pregnant, ready to deliver her baby

daughter, Chloe, in about two weeks, and she had not

talked with her daughter for two days.” When Porter

arrived at Jessie’s home, she found the usually well

kept home in disarray. Blake, Jessie’s two year old

son, came running down the stairs, his diaper drip-

ping with urine and feces. Porter asked her grand-

child, “Blakey, where is Mommy?” Blake responded,

“Mommy is crying, Mommy broke the table, Mommy

is in the rug.”* Scared, Porter ran through the house

hollering for Jessie. Upon entering Jessie’s bedroom,

she saw a table and lamp knocked over and the

mattress off its box springs. There was bleach poured

' State v. Cutts, Stark App. No. 2008 CA00079, 2009-Ohio-

3563, 2009 WL 2170687, appeal denied, 123 Ohio St.3d 1509,

2009-Ohio-6210, 917 N.E.2d 812.

* tr. 1 75.

> Tr. I, 84.

3

all over the floor with a bleach bottle sitting on the

floor by the bed. Porter also noticed that the bed’s

blue and gold print comforter was missing.” Unable to

find Jessie, Porter called 911 and told her daughter,

Audrey, to call Cutts, Blake’s father and the alleged

father of Chloe.

A deputy sheriff responded to the 911 call of a

missing person and possible burglary. Cutts arrived

about ten minutes later dressed in his police uni-

form.’ When Blake saw Cutts, he started to cry.”

Deputy Sheriff Sgt. Eric Weisburn responded to

the scene as the lead investigator. Weisburn noticed

that Cutts had a band-aid on his pinky finger and

when asked about it, Cutts explained that he had cut

it while cleaning the patio fireplace at his home.’

Weisburn interviewed Cutts who feigned igno-

rance of Jessie’s whereabouts, concocting a story that

he had made a number of calls to Jessie’s cell phone

when she did not drop Blake off at his home to baby-

* 8

sit.

With his attention focused on finding Jessie

and her child, Weisburn asked Blake where his

mommy was, and Blake replied that she was at work.

* Tr. 1, 86.

° Tr. I, 165, 185, 190.

* r. I, 104.

" Ty. I, 219.

* Tr. I, 220, State’s Exh. 1.

4

Spontaneously, Blake then repeated what he had

previously told Porter.”

In a subsequent interview, Cutts continued his

charade of innocence telling Weisburn about his calls

to Jessie’s cell phone, that he had picked up Myisha

Ferrell, a friend, to babysit Blake while he was at

football practice, and gave him several names of

potential witnesses, again denying any knowledge of

Jessie’s whereabouts. Cutts even showed Weisburn

the patio fireplace where he told Weisburn he had cut

his pinky finger.”

Because Jessie was missing and was due to deliv-

er in a couple weeks, the community organized a

number of searches conducted by volunteers to try to

find Jessie. Cutts participated in these search efforts.

The week following Jessie’s disappearance, the

FBI joined the sheriff’s team of investigators to

search for Jessie and Chloe.’ The team found dis-

crepancies in Cutts’ story. For one thing, the team

learned that after Cutts left a local bar, he visited

Stephanie Hawthorne, a person he did not mention in

previous conversations with the team. For another

thing, they learned that a telephone call Cutts made

to Jessie’s cell phone around 7:15 a.m. on June 14,

2007 was made from a location in Summit County

* Tr I, 223, 229.

” tr. I, 242.

" Tyr I, 253.

5

and not from his residence in Plain Township as

Cutts had claimed.”

Meanwhile, Cutts continued his charade, denying

involvement with Jessie’s disappearance, expressing

his anguish at her loss and hopes that she would be

found alive. The distraught Cutts did not report to

work that week instead staying in his home visiting

with his friends and family and playing video games.

Cutts also gave a recorded interview with local news

media.”

Finally, eight days after Jessie’s and Chloe’s dis-

appearance, when confronted with evidence that his

one call to Jessie on the morning of her disappear-

ance was not made from his home, Cutts told the law

enforcement team he would now show them where

the bodies of Jessie and Chloe were located. Cutts

finally directed the team to an area in a park field

where he had dumped the bodies of Jessie and

Chloe.”

Dr. Lisa Kohler performed autopsies the next

day. Jessie’s body was in an advanced stage of de-

composition. Jessie’s abdomen, kidneys, liver, spleen,

pancreas, eyes and brain were gone. Some bones in

the neck, part of the hyoid bone and some fingertips

-

i)

Tr. I, 260.

Tr. VI, 315.

Tr. Ii, 318.

Tr. II, 318.

x)

-

a

-

v

6

and toes were also missing.” The skeletal body of

Chloe was contained within Jessie’s remains. The

bodies were also in an advanced stage of “putre-

faction,” common to being left in an area exposed to

the hot sun and insect penetration.”

Because of the condition of the bodies, Kohler

was not able to determine the mechanism of death.

Kohler opined, however, that if the body of Jessie

would have been recovered earlier, the specific cause

of death could have been determined.” Still, based on

the autopsy, review of medical records, and law en-

forcement reports, the cause of death was ruled “un-

specified homicidal violence ... Ms. Davis had come

to harm at “the hands of another individual.”

Kohler made another significant finding — baby

Chloe was viable and if she had been born at the time

of her mother Jessie’s death, she would have survived

outside of her mother’s womb. This medical opinion

was shared by Dr. Craig Polifrone, Jessie’s obstetri-

cian, who examined Jessie days before her disappear-

ance and saw a normal, happy and healthy mother, as

well as a healthy and viable fetus.”

After killing Jessie and Chloe, Cutts picked up

his high school friend, Myisha Ferrell, during the

© Ty. IV, 1264, 1271.

"Tr V, 1264.

' Tr. V, 1283.

' Ty IV, 1242, 1244, 1304, 1306.

7

early morning of June 14, 2007, driving his green

truck. Cutts told her he needed some help and that

something had happened. The pair traveled north on

I-77, with Cutts talking in spurts, saying something

was wrong with the baby’s mother and that she was

“in the back.” Ferrell asked Cutts what had hap-

pened, and Cutts responded by raising his arm and

putting it by his neck, never suggesting that Jessie’s

death was accidental.”

Cutts eventually stopped at an open field in a

secluded area. The pair exited the truck, and Ferrell

saw in the bed of the truck a body wrapped in a

blanket with a pair of feet sticking out. Ferrell also

saw a few bags in the back with a material resem-

bling a burgundy print. After Cutts dumped the

bodies of Jessie and Chloe, he returned to the truck.

On the way back to Canton, he stopped to drop the

plastic bags in a dumpster, and later stopped at a car

wash where he sprayed the bed of his truck with

water. In the bed of his truck, he replaced Jessie and

Chloe’s bodies with mulch he picked up at a gas

station.’ Cutts then threw Jessie’s cell phone out the

window, but only after calling her cell phone number

and leaving a message claiming that she had never

showed up to drop Blake off and complaining that her

actions deprived him of sleep.

*° Tr. Il, 417-418, 421.

71 Tr. Il, 423-427.

8

Cutts took Ferrell back to his house where he

showered and changed, asking Ferrell if she could see

any marks on his chest. Ferrell saw none, but ob-

served a cut on Cutts’ pinky finger. Cutts told her he

received the cut when Jessie bit his finger. Cutts then

gave Ferrell $100 and told her he wished he could

give her more.

At trial, Cutts testified in his own defense, giving

a self-serving statement, a version the jury did not

find credible. Cutts admitted to being at Jessie’s

home that early morning. He found Jessie on the floor

in her bedroom. When she was slow in getting up,

Cutts told her to hurry. When Jessie was slow in re-

sponding, Cutts ordered her again to “hurry up,”

because “I want to get back to bed.” Cutts claimed an

argument ensued that resulted in Jessie biting his

finger when he waved it in front of her face. As a

result, Cutts turned to leave the bedroom when Jessie

allegedly grabbed him from behind to prevent him

from leaving. Cutts claimed that he accidentally

swung his elbow to ward her off of him.

According to Cutts, this swing of his elbow landed

in Jessie’s throat area,” and she hit the floor very

hard. Getting no response from Jessie, Cutts did not

call 911, instead trying CPR. Cutts checked her pulse

and found none. When CPR was unsuccessful, he

started chest compressions. He next found a bottle of

bleach, poured some in the cap and put it under her

* Tavis stood 5'4" tall, while Cutts was six feet tall.

9

nose. Jessie’s cell phone was in the charger, but

Cutts, claiming he could not turn it on, did not call for

emergency help. Even though his cell phone was in

his truck, Cutts did not use it to call for emergency

help.

Cutts ultimately decided to leave in his truck

with the body of Jessie and Chloe, wrapped in the

truck bed-in a comforter.“ In leaving the house with

the bodies, Cutts knowingly left his toddler son,

Blake, in the home by himself. Cutts did nothing to

alert authorities to Jessie’s disappearance or to

Blake’s presence in the home by himself.

¢

REASONS FOR DENYING THE WRIT

I. Inconsistent Jury Verdicts

Cutts’ first claim argues that the jury’s verdicts

in this case are inconsistent, and thus the court of

appeals erred in not vacating his convictions and in

affirming the trial court’s overruling his mistrial

motion. Cutts’ argument is not based on a federal

constitutional claim, but is instead based on the state

courts’ application of state law. Cutts has therefore

failed to assert a federal claim triggering this Court’s

jurisdiction, and the claim should be rejected on this

ground. Assuming, however, that Cutts’ claim does

* Tr. V, 210-212.

“ Tr. V, 200.

10

sufficiently raise a federal claim, it nonetheless fails

on the merits. First, the verdicts are not inconsistent

since they involved two separate victims, as well as

‘separate homicidal acts with differing animus for

each of their deaths. In other words, the acts and

mental element for the death of Jessie Davis was

found to be different than the acts and mental ele-

ment that resulted in Chloe’s death. And second,

“inconsistent verdicts are constitutionally tolerable.””

In other words, a criminal defendant is not deprived

of due process simply because the jury returns incon-

sistent verdicts. Thus, the trial court did not err or

abuse its discretion in overruling Cutts’ mistrial

motion challenging the verdicts.

Since nothing under the federal constitution bars

inconsistent verdicts, the court of appeals looked to

Ohio law that defined the parameters for inconsistent

verdicts. Under Ohio law, an indictment containing

more than one count is not interdependent and an

inconsistent verdict does not result from inconsistent

responses to different counts. Inconsistent verdicts

* Dowling v. United States, 493 U.S. 342, 353-354 (1990);

Standefer v. United States, 447 U.S. 10, 25 (1980) (“While sym-

metry of results may be intellectually satisfying, it is not re-

quired.”); Hamling v. United States, 418 U.S. 87, 101 (1974) (It

has, of course, long been the rule that consistency in verdicts or

judgments of conviction is not required.”); United States uv.

Dotterweich, 320 U.S. 277, 279 (1943); Dunn v. United States,

284 U.S. 390, 393 (1932) (“Consistency in the verdict is not nec-

essary. Each count in an indictment is regarded as if it was a

separate indictment.”).

ll

arise only out of inconsistent responses to the same

count.” The verdicts in this case were not inconsis-

tent. The jury did return different verdicts pertaining

to the deaths of Jessie Marie Davis and her unborn

child Chloe, but those verdicts are based on differing

animus and actions that led to each death. The crucial

difference between their deaths, which Cutts ignores

in his argument, is the difference in timing of the

deaths. Jessie was but two weeks from her scheduled

due date, and Chloc survived after her mother’s death.

Prompt medical attention could have saved Chloe’s

life, despite the fact that her mother was dead. Cutts,

a trained police officer, chose, however, to do nothing

and let his unborn daughter die. Since he had already

perpetrated homicidal violence on Davis, Cutts was

now a trespasser who had committed the crime of

murder; his continued presence in the Davis resi-

dence and allowing his unborn daughter to die as a

result of his actions was a callous, calculated, and

purposeful decision to cause her death, separate and

apart from iiis intent and actions vis-a-vis Chloe’s

mother.

Under these facts and circumstances, the ver-

dicts in this case relative to the separate deaths of

* See, e.g., State v. Lovejoy, 79 Ohio St.3d 440, 1997-Ohio-

371, 683 N.E.2d 1112, paragraph one of the syllabus (“The sev-

eral counts of an indictment containing more than one count are

not interdependent and an inconsistency in a verdict does not

arise out of inconsistent responses to different counts, but only

arises out of inconsistent responses to the same count.”).

12

Jessie Marie Davis and her unborn daughter Chloe

were not inconsistent. His failure to act to save his

daughter constitutes a separate act and a separate

animus from Cutts’ actions and intent in killing

Davis.

II. Change of Venue - Pretrial Publicity

Cutts argues that extensive pretrial publicity

about the disappearance of Jessie and his subsequent

arrest was so pervasive as to preclude a fair trial.

Cutts in fact makes allegations in his petition about

this publicity in an attempt to show that a fair trial

was impossible, allegations that are not supported by

the record in this case. Cutts chose to exclude from

the record on appeal a transcript of the extensive jury

selection process, and the record that was made part

of this appeal does not support Cutts’ sweeping and

exaggerated claims. The trial court had prospective

jurors fill out an extensive questionnaire that focused,

among other things, on pretrial publicity. In addition,

the trial was delayed many months to allow commu-

nity passions to die down. Finally, the record does not

refute that the court extensively inquired of all jurors

about what they knew about the case, and whether

they could put any such knowledge aside and judge

the case solely on the evidence admitted at trial and

the instructions of law provided by the court. As a

result of these extensive measures, which were noted

by the majority of the court of appeals below and the

dissenting judge, a fair and impartial jury was se-

lected that not only resulted in an acquittal of Cutts

for the aggravated murder of Jessie, but also resulted

in a recommendation of a life sentence as opposed to

the dean penalty for the death of Chloe. Under these

facts and circumstances, Cutts was not denied a fair

trial by the unsubstantiated allegations set forth in

his brief.

Cutts’ argument is in part a federal claim, al-

though the primary focus of his argument is on state

law. The law in Ohio is that the examination of jurors

during voir dire affords the best test to determine

prejudice from pretrial publicity. The mere fact that

there has been extensive pretrial publicity and expo-

sure to prospective jurors does not necessarily mean

that a fair and unbiased jury cannot be chosen and

that a change of venue is mandated.” There is no

requirement that prospective jurors be totally igno-

rant of the facts and issues of a particular case.”

Thus, a careful and searching voir dire is the appro-

priate and adequate vehicle for determining whether

prospective jurors can put aside whatever they have

been exposed to about the.case and judge the case

*" See, e.g., State v. White, 82 Ohio St.3d 16, 21, 1998-Ohio-

363, 693 N.E.2d 772, 777-778, cert. denied, 525 U.S. 1057 (1998)

(noting that it will he rare for a court to presume prejudice from

pretrial publicity). See also Nebraska Press Assn. v. Stuart, 427

U.S. 539, 554 (1976) (noting that “pretrial publicity — even per-

vasive, adverse publicity — does not inevitably lead to an unfair

trial”).

” See State v. Thompson, 33 Ohio St.3d 1, 5, 514 N.E.2d

407, 412 (1987). See also Irwin v. Dowd, 366 U.S. 717, 722

(1961).

14

solely on the facts and law presented to them at

trial.” Finally, the trial court’s decision regarding a

change of venue is reviewed under the deferential

abuse of discretion standard — that the court’s ruling

will be affirmed unless it is unreasonable, arbitrary,

or unconscionable.”

Cutts failed to include the transcript of the voir

dire in this case to show that prospective jurors could

not be fair and impartial. These assertions, apparently

based solely on the jurors’ questionnaire answers,

cannot be supported with any reliability without a

review of the voir dire itself. Under these facts and

circumstances, Cutts has failed to satisfy his burden

of showing an abuse of discretion in the trial court's

ruling on his motion for change of venue.”

*” See, e.g. State v. Maurer, 15 Ohio St.3d 239, 252, 473

N.E.2d 768, 781-782 (1984), cert. dented, 472 U.S. 1012. See also

Patton v. Yount, 467 U.S. 1025, 1035 (1984).

” See, e.g., State v. McKnight, 107 Ohio St.3d 101, 2005-

Ohivo-6046, 837 N.E.2d 315, 94 60-61, cert. denied, 548 U.S. 912

(2006).

" See, e.g., United States v. Rahman, 189 F.3d 88, 121-122

(2d Cir. 1999), cert. denied, 528 U.S. 1094 (2000) (upholding

denial of change of venue ruling by then District Judge Michael

B. Mukasey in high publicity trial for seditious conspiracy aris-

ing from plots to bomb buildings, tunnels, and bridges in New

York City and approving of Judge Mukasey’s searching voir

dire).

15

Cutts relies upon this Court’s decision in Shep-

pard”™ and Estes™ in making his federal claim. Neither

case, however, is instructive or applicable to Cutts’

specific claim. Both cases dealt with the impact of

pretrial publicity on the criminal trial, but they also

focused on the conduct of the trial itself. Cutts makes

no claim in his appeal that his trial was conducted in

a carnival environment because of the presence of the

press and the trial court’s failure to protect the jury

from media contamination, as was the case in both

Sheppard and Estes.

In Sheppard, for example, there was extensive

pretrial publicity relating to the brutal murder of Dr.

Sam Sheppard’s wife. This Court reversed his Dr.

Sheppard’s murder conviction not on this basis

alone,” however, but on the failure of the trial court

to protect him from inherently prejudicial publicity

and to control disruptive influences of the media in

the courtroom during the trial. This Court specifically

stressed the “carnival atmosphere at trial” in its opin-

ion, and the failure of the trial court to take measures

to prevent this denial of due process. Cutts does not

claim that his criminal trial resembled in any way

*” Sheppard v. Maxwell, 384 U.S. 333 (1966).

* Estes v. Texas, 381 U.S. 532 (1965).

“ Sheppard, 384 U.S. at 354-355 (“While we cannot say

that Sheppard was denied due process by the judge’s refusal to

take precautions against the influence of pretrial publicity alone,

the court’s later rulings must be considered against the setting

in which the trial was held.”).

16

the “carnival” trial that characterized the Sheppard

trial.

In Estes, this Court set aside a criminal convic-

tion based again on pretrial publicity as well as the

media’s impact on the trial itself. Unlike the situation

in Sheppard, there was a change in venue in Estes, as

well as a sequestration of the jury, yet the media

coverage of the trial turned the jurors into celebrities

due to the judge’s failure to insulate them from the

media. Furthermore, this Court took exception to the

failure of the trial court to take corrective measures

to prevent the contamination of the jury from media

coverage during the trial itself, allowing the trial to

be televised in a highly sensational manner. In the

instant case, however, Cutts does not make a claim

that the conduct of the trial itself was compromised

by contemporaneous media coverage of the trial.

Instead, his claim is limited to a per se challenge to

the conduct of any trial in Stark County due to the

pretrial publicity.

Finally, Cutts claims that the pretrial publicity in

this case, which was not only local, but also statewide

and national, was so pervasive and sensational that

no unbiased jury could be selected in Stark County.

Yet, since this same pretrial publicity was present

throughout Ohio, Cutts could then make the same

arguments no matter where the trial was conducted

in Ohio, and regardless of the prophylactic measures

implemented by the trial judge to secure an unbiased

and impartial jury. Such an argument claims too

17

much, especially given the incomplete record in this

case.

Ill. Juror Who Searched

Cutts argues that his constitutional right to a

trial by a fair and impartial jury was violated when

the trial court denied his request to remove a juror

who had participated in the search for Jesse and

Chloe while they were missing. His argument is es-

sentially a per se claim since he cannot demonstrate

that the juror was in any way biased or partial, based

upon the partial record Cutts has opted to have re-

viewed. The sole connection that the juror in ques-

tions had to this case was her participation in the

search for Jesse and Chloe in Stark County, where

nothing was found since Cutts had taken the bodies

to Summit County.

Furthermore, Cutts’ argument that any potential

juror who either participated in the search for Jessie

and Chloe is per se a partial and biased juror is

without merit. The search was for missing persons

who may or may not have been the victims of crimi-

nal conduct. The search was not for the killer of

Jessie and Chloe. Furthermore, the search did not

uncover any evidence for the simple reason that the

bodies were not in Stark County, as Cutts well knew.

Under these circumstances, as well as the state of the

record in this appeal, Cutts has not demonstrated

that he was denied a fair trial by the inclusion of a

biased and partial juror.

18

IV. Lesser Included Jury Instruction - In-

voluntary Manslaughter

Cutts’ fourth claim challenges the ruling of the

court of appeals that affirmed the trial court’s deci-

sion not to instruct the jury on the lesser included

offense of involuntary manslaughter. While this chal-

lenge is couched in the terms of a general due process

claim, the challenge is essentially one challenging the

application of state law. Assuming, however, that

Cutts has properly triggered this Court’s jurisdiction

by raising a nebulous federal claim, his challenge is

still without merit. The trial court in this case held

that the evidence presented at trial did not support

the involuntary manslaughter instruction. This rul-

ing was properly upheld on appeal since the record

did not support such an instruction.

As part of its jury charge, the trial court in-

structed on the lesser included offense of murder, but

denied Cutts’ request for a charge of involuntary

manslaughter (based on the misdemeanor offense of

domestic violence). The jury request went to Davis’

death, and not to the subsequent death of Chloe. In so

ruling, the trial court noted that Cutts had pursued a

complete defense vis-a-vis Davis’ death.

Cutts argues that the evidence could lead the

jury to the conclusion that Cutts recklessly caused

Jessie’s death as a proximate result of committing the

misdemeanor offense of domestic violence. This argu-

ment, however, was undercut by Cutts’ defense at

trial, which was the complete defense of accident.

19

Cutts testified that he swung his elbow in an effort to

get away from Jessie, and that he did not intend to

strike the pregnant woman in the throat, causing her

apparently immediate death. Cutts did not testify

that he recklessly struck Jessie, but instead that he

never intended to strike her. Thus, the evidence at

trial did not support the requested instruction for in-

voluntary manslaughter, which would have required

Cutts to have admitted to striking Jessie with the

intent of harming her. No crime was therefore com-

mitted, according to Cutts, since he was only trying to

slip Jessie’s grasp of him, and did not act recklessly in

striking Davis in committing the offense of domestic

violence.

The ruling of the court of appeals in this case was

consistent with Ohio law governing such jury instruc-

tions. The issue in this claim is whether the evidence

supported an instruction on the lesser included

offense of involuntary manslaughter.” The Ohio Su-

preme Court held in 1988 that involuntary man-

slaughter is a lesser included offense of aggravated

murder.” The state supreme court has continuously

followed this holding in Thomas in reviewing this

*® See State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625,

886 N_E.2d 181.

* State v. Thomas, 40 Ohio St.3d 213, 533 N.E.2d 286

(1988), paragraph one of the syllabus, cert. denied, 493 U.S. 826

(1989).

20

specific claim.” But the court has also followed the

other requirement for a lesser-included-offense in-

struction set forth in Thomas — that sufficient evi-

dence is presented that would allow a jury to reject

the greater offense and to find the defendant guilty of

the lesser included offense.* The supreme court noted

in Thomas that a defendant must show more than the

fact that one offense is a lesser included offense — he

must also show that “the evidence presented at trial

would reasonably support both an acquittal on the

crime charged and a conviction upon the lesser in-

cluded offense.”” Under this standard, therefore, the

courts below correctly followed Ohio law in holding

that the evidence presented in this case did not war-

rant a jury instruction for involuntary manslaughter.

We Jury Selection — Ohio Driver’s Licenses

Cutts’ fifth claim once again fails to raise a clear

claim under the federal constitution, and instead

takes issue with how the state courts below applied

state law. In this case, Ohio permits the jury pool to

be selected from the rolls of registered voters. Cutts

*” See, e.g., State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-

791, 842 N_E.2d 996, 4] 132; State v. Monroe, 105 Ohio St.3d 384,

2005-Ohio-2282, 827 N.E.2d 285, J 36; State v. Lynch, 98 Ohio

St.3d 514, 2003-Ohio-2284, 787 N.E.2d 1185, q 79.

* See Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842

N.E.2d 996, at 7 134.

*” Thomas, 40 Ohio St.3d 213, 533 N.E.2d 286, at paragraph

two of the syllabus.

21

argues that this statutory scheme is flawed and

discriminatory, and that the trial court should have

selected this pool from a list of Ohio driver’s license

holders in Stark County. Since Cutts has failed to

raise a clear federal claim, he has failed to properly

invoke this Court’s jurisdiction on this claim. In

addition, his claim was without merit under Ohio law.

Finally, Cutts’ factual claims made in support of this

challenge are not supported by the partial record in

this case.

Cutts’ argument ignores the precedent of this

Court and the Ohio Supreme Court applying federal

and state law, which have held that use of voter regis-

tration rolls to select juries does not violate a criminal

defendant’s right to a fair and impartial jury that

represents a fair cross section of the community.

The Sixth Amendment to the United States Con-

stitution does not require that petit juries “mirror the

community and reflect the various distinctive groups

in the population.” The Sixth Amendment, however,

does require that the method used for selecting the

groups from which juries are drawn “must not sys-

tematically exclude distinctive groups in the commu-

nity and thereby fail to be reasonably representative

thereof.”

* Taylor v. Louisiana, 419 U.S. 522, 538 (1975).

" Taylor, 419 U.S. at 538.

22

In order to make this showing of a prima facie

violation of the Sixth Amendment’s fair cross section

requirement, a criminal defendant must show “(1) that

the group alleged to be excluded is a ‘distinctive’

group in the community; (2) that the representation

of this group in venires from which juries are selected

is not fair and reasonable in relation to the number of

such persons in the community; and (3) that this

underrepresentation is due to systematic exclusion of

the group in the jury-selection process.” The Ohio

Supreme Court has specifically followed and applied

this Duren standard.”

For purposes of fair-cross-section analysis, African-

Americans are a distinctive group.” With regard to

the second prong of the Duren standard, Cutts has

failed to demonstrate in this partial record that

excludes jury selection that African-Americans in

Stark County are unfairly represented in venires

relative to their numbers in the community. Finally,

with regard to the third prong of the Duren standard,

“” Duren v. Missouri, 439 U.S. 357, 364 (1979). See also

Berghuis v. Smith, __ U.S. ___ (decided March 30, 2010), 2010

WL 1189555 (reaffirming the Duren standard in applying to a

federal habeas corpus challenge to the alleged exclusion of

women from jury pools).

* State v. Fulton, 57 Ohio St.3d 120, 566 N.E.2d 1195 (1991),

paragraph two of the syllabus (reviewing systematic, per se

exclusion of persons of the Amish religious faith).

“ State v. Jones, 91 Ohio St.3d 335, 340, 2001-Ohio-57, 744

N.E.2d 1163, 1172-1173. See also United States v. Buchanan, 213

F.3d 302, 309-310 (6th Cir. 2000).

23

use of the voter registration rolls does not result in

systematic exclusion of African-Americans in Stark

County since this method is not a vehicle that is

designed to or results in their systematic exclusion.”

Finally, Cutts has failed to adequately preserve

this issue for appellate review by his failure to in-

clude a transcript of the voir dire and jury selection

process. He thus cannot make a factual basis for his

systematic-exclusion argument. Under these facts and

circumstances, he has failed to demonstrate unfair

representation of African-Americans on Stark County

juries, as well as on his particular jury, or that such

alleged under-representation resulted from a system-

atic exclusion of that group by the state.“

“© See, e.g., State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-

5981, 836 N.E.2d 1173, at ¥ 66.

* In addition, federal jury pools are also drawn from voter

registrations under 28 U.S.C. §1863(b), and constitutional chal-

lenges to this selection method have been rejected. See United

States v. Odeneal, 517 F.3d 406, 412 (6th Cir. 2008) (“The circuit

courts are “‘in complete agreement that ... neither the Act nor

the Constitution require that a supplemental source of names be

added to voter lists simply because an identifiable group votes in

a proportion lower than the rest of the population.’”) (citing list

of cases); United States v. Test, 550 F.2d 577, 587 n.8 (10th Cir.

1976); United States v. Forest (C.A. 6, 2004), 355 F.3d 942, 953-

954, cert. denied, 543 U.S. 856 (2004) (rejecting Duren challenge

to jury pools in Akron on basis that African-Americans are

underrepresented)

24

VI. Grand Jury Testimony

Cutts argues that he was denied due process by

the trial court declining to require the prosecution to

disclose grand jury testimony. Cutts had sought the

disclosure of the grand jury testimony of Courtenay

Robinson, Adrena Snell, Stark County Sergeant Weis-

burn, various FBI agents and Richard Mitchell. The

courts below held that Cutts had not shown a particu-

larized need for such testimony based upon applicable

state law. As such, Cutts once again raises a state law

claim that does not trigger this Court’s jurisdiction.

Assuming that jurisdiction has been triggered, how-

ever, Cutts’ claim is nonetheless without merit since

he did not show a particularized need for this testi-

mony.

Under Ohio law, grand jury proceedings are

secret and an accused is not entitled to inspect grand

jury material either before or during trial unless the

ends of justice require it. In other words, the defen-

dant must show a particularized need and disclosure

that outweighs the need for secrecy. The decision

whether to release grand jury testimony is within the

discretion of the trial court and will not be reversed

absent an abuse of discretion. The standard is not

different for a death penalty case.”

“ State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840

N.E.2d 1032; State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-

6391, 819 N.E.2d 215.

25

Before trial, Cutts filed two motions to disclose

grand jury testimony. The motions were denied based

upon a finding by the trial court that Cutts had failed

to demonstrate a particularized need.” The trial court

did not abuse its discretion in so ruling, especially

since Cutts’ attempts were nothing more than a

fishing expedition to circumvent the criminal rules of

discovery. The State had complied with the discovery

requirements of Ohio Crim. R. 16 and provided to

Cutts the names of the witnesses it intended to call at

his trial and the inculpatory statements of the co-

defendant Myisha Ferrell.

Cutts uses the testimony of Richard Mitchell that

Cutts had previously threatened to “kill that bitch

and throw her in the woods” as proof of his pretrial

need for the grand jury testimony. Yet, Cutts did not

ask for the pretrial disclosure of Mitchell’s grand jury

testimony and the statement was not made to law

enforcement personnel. What is more, the State

disclosed the name of Richard Mitchel] to Cutts as

a potential witness and indeed Cutts’ investigator

interviewed him.

Cutts also claims that he demonstrated a partic-

ularized need for grand jury testimony of FBI agents

and law enforcement officers to show the evidence of

aggravated burglary, as alleged in the indictment,

an allegation also set forth in Cutts’ unsuccessful

motion to dismiss. Cutts ignores Ohio law that holds

“ Tr. Motion Nov. 16, 2007, 16.

26

that any privilege to be on and remain on property is

revoked when an act of violence is directed against

the person holding the ability to revoke the privilege

of initial entry.”

Finally, Cutts argues that he was entitled to the

disclosure of this grand jury testimony due to the

simple fact that his case was a capital case. As a re-

sult, Ohio’s law that requires a showing of a partic-

ularized need for grand jury testimony to warrant

disclosure of it violates this Court’s basic capital

jurisprudence that regards the death penalty as dif-

ferent from other, non-capital cases. The cases Cutts

relies upon for this proposition, however, deal with

the requirement that the capital jury’s discretion

should not be limited in its consideration of miti-

gating factors in order to reach an individualized

sentencing decision, and do not stand for the

proposition advanced by Cutts.”

VII. Blake’s Hearsay Statements

Cutts challenges the admission of the hearsay

statements of his two year old son, Blake, whom Cutts

had abandoned after killing Blake’s mother and re-

moving her from the house. When Jessie’s mother

finally came to the house two days later to check on

” See State v. Steffen, 31 Ohio St.3d 111, 509 N.E.2d 383

(1987), cert. denied, 485 U.S. 916 (1988).

” See Lockett v. Ohio, 438 U.S. 586 (1978); Woodson uv.

North Carolina, 428 U.S. 280 (1976).

27

Jessie, Porter not only discovered that her pregnant

daughter was missing, but that Blake had been left in

the house by himself. The trial court admitted Blake’s

statements to his grandmother on the ground that

the statements constituted excited utterances, and

were thus admissible under Ohio Evid. R. 803(2).”

The trial court also admitted Blake’s statements to

Detective Weisburn on the ground that the state-

ments were made in response to an ongoing emer-

gency, i.e., the unexplained disappearance of his

pregnant mother. The court of appeals upheld the

trial court’s ruling, holding that the admission of

Blake’s statements did not violate Crawford.” These

rulings were consistent with this Court’s developing

jurisprudence post-Crawford.

The trial court conducted a pretrial hearing to

determine the admissibility of Blake’s statements.

Both Porter and Sgt. Weisburn testified at this pre-

trial hearing. Porter testified that when she arrived

at Davis’ home two days after hearing from her

daughter last, she noticed that Davis’ purse was all

over the floor. Blake then came downstairs upon

hearing his grandmother. Porter smelled him before

she saw him since his diaper was wet and soiled after

not being changed for two days. “Where is Mommy?”

Porter asked her grandson. “Mommy crying. Mommy

* Ohio Evid. R. 803(2): “A statement relating to a startling

event or condition made while the declarant was under the stress

of excitement caused by the event or condition.”

*“ Crawford v. Washington, 541 U.S. 36 (2004).

28

broke the table. Mommy in the rug,” was the toddler’s

response. Instead of his friendly and smiley self,

Blake just had a very blank stare upon going to his

grandmother.”

Sgt. Weisburn testified that he responded to the

Davis residence on the morning of June 15th to inves-

tigate a missing pregnant woman. He ascertained

that the toddler Blake was apparently left alone in

the home for two days. His primary concern was the

location and well-being of this very pregnant woman.

In an effort to find out where Jessie might be, Weis-

burn talked with Blake. The toddler repeated his

words, that his mother was crying, that she broke the

table, and that she was in the rug. Blake then

stopped coloring and looked out the window in the di-

rection of the Davis home and said, “Daddy’s mad.”

Blake’s statements to Porter qualified as an ex-

cited utterance, and that those statements to her and

to Sgt. Weisburn were non-testimonial since they

were elicited in response to an ongoing emergency —

the unexplained and prolonged disappearance of a

young pregnant mother who was but two weeks from

her delivery date leaving her purse and her two year

old son behind. The primary purpose of both Porter

and law enforcement was locating Davis and locating

* Tr. Motion Feb. 1, 2008, 8-13.

“ Tr. Motion Feb. 1, 2008, 42, 44-47, 51-52, 53-54.

29

her as soon as possible given her pregnant condition

and her unexplained disappearance.”

At trial, while Cutts did object to the testimony of

Sgt. Weisburn with regard to Blake’s statements to

him,” which was overruled by the trial court, Cutts

did not object to the trial testimony of Porter con-

cerning Blake’s statements to her.’ Given that

Blake’s statements to his grandmother are identical

to the statements the toddler gave to Sgt. Weisburn,

Cutts’ challenge to the admission of the latter state-

ments is without merit since he cannot demonstrate

prejudice from the admission of the statements to

Sgt. Weisburn since he did not object to those same

statements to Porter.

The courts below, in making their Crawford rul-

ings that the primary purpose of eliciting the state-

ments from Blake about his mother’s whereabouts

was in response to an ongoing emergency — the sud-

den and unexplained disappearance of Jessie Davis, a

woman whose delivery date was two weeks away,

leaving her home, her young child, and her job. The

immediate location of the missing woman was not

only the primary purpose of both Porter and Weis-

burn, but would have been the primary purpose of

any reasonable and concerned person.

© Tr. Motion Feb. 1, 2008, 76-79.

* Tr. Motion Feb. 4, 2008, 221-227.

*’ Tr. Motion Feb. 4, 2008, 84.

30

The appellate court’s ruling was grounded in this

Court’s Davis opinion, as well as the Ohio Supreme

Court’s application of Davis™ in its Siler decision.”

In following this Court’s Crawford jurisprudence, the

Siler court specifically followed this Court’s Davis

decision and differentiated testimonial statements

versus nontestimonial statements on the basis of

whether the objective primary purpose of the state-

ments was to enable police assistance to meet an on-

going emergency. As Davis noted, if the circumstances

objectively indicate that there is no ongoing emergen-

cy and that the primary purpose of the statements

was to establish or prove past events potentially rele-

vant to later criminal prosecution, then the state-

ments would be testimonial in nature, and thus come

under Crawford’s rubric.

In the instant case, both Porter and Sgt. Weis-

burn were responding to an emergency —- a single

pregnant mother who was close to delivery who had

been missing from her home for two days. This miss-

ing mother had left her two year old son home alone

and alerted no one to her disappearance — not her

mother, not her employer or fellow work colleagues,

not her sister, not her neighbors, not anyone. In

addition, signs of violence were present in her home,

despite the fact that there were no signs of forced

entry. The trial court’s decision to believe these two

* Davis v. Washington, 547 U.S. 813 (2006).

® State v. Siler, 116 Ohio St.3d 39, 2007-Ohi0-5637, 876

N.E.2d 534.

31

people that their primary purpose in talking to Blake

was to find out what had happened to his mother in

order to locate and help her was not only supported

by the evidence presented, but by common sense and

compassion. Davis’ disappearance was in fact an

ongoing emergency for several days after she was

discovered missing. The appellate court’s ruling was

thus in accordance with this Court’s Crawford-Davis

cases.

Vill. Other Acts Evidence - Character Evi-

dence

Cutts argues in this eighth claim that the trial

court erred and abused its discretion in allowing the

testimony of Jill Butler, Stephanie Hawthorne, Jenni-

fer Sprout and Todd Porter, which he argues consti-

tuted inadmissible other acts evidence. In making

this claim, Cutts only makes a general due process

argument, while specifically arguing that the deci-

sions of the courts below violated Ohio’s evidentiary

rule governing other acts evidence.” These witnesses

testified to statements made by Cutts during the nine

days that Jessie and Chloe were missing. Those state-

ments included denials of the whereabouts of Jessie

and her baby and hopes that they were still alive

showing Cutts’ state of mind and activities during

this period. Cutts concedes relevance, but argues that

® See Ohio Evid. R. 403(B).

32

their probative value was outweighed by unfair preju-

dice. Again, Cutts’ claim is primarily a state law

claim.

Under Ohio law, the admission or exclusion of

evidence rests within the sound discretion of the trial

court. In order to find an abuse of discretion. Ohio

Evid. R. 403(A) provides that ‘fallthough relevant,

evidence is not admissible if its probative value is

substantially outweighed by the danger of unfair

prejudice, of confusion of the issues, or of misleading

the jury. The testimony of Butler was relevant, not

because it demonstrated Cutts’ marital infidelity, but

because she had contact with him on June 13, 2007,

the day before the murders, and communicated with

him during the nine days that Jessie and Chloe were

missing. She visited him at his home and observed

his demeanor. Similarly, Sprout talked with Cutts

while Jessie and Chloe were missing and observed

Cutts crying, saying “he can’t believe she is missing.”

Cutts went to visit Hawthorne after he left Champs

Bar and helped to establish a time line for his

activities on June 13. He arrived at Hawthorne’s

home at 1:00 a.m. and stayed until 2:00 a.m. The

testimony about Hawthorne’s terminated pregnancy

of Cutts’ child, which occurred in June, 2007 was

offered as evidence of motive. And Sprout was offered

because it established the time line for the mur-

ders.’ Cutts did not tell Weisburn that he visited

“ ‘Tr. I, 535, Tr. Lil, 623, 644.

33

Hawthorne that night and her name was discovered

when Cutts’ cell phone records were obtained.

While the search for Jessie and Chloe continued,

Todd Porter, a sportswriter for the Canton Repository,

was contacted by Mitchell, then Cutts’ friend, so that

Cutts could tell his side of the story. When Porter

arrived, he conducted the taped interview. In that

interview, Cutts denied he knew anything about the

disappearance of Jessie and hoped that she would be

found alive.” The interview with Porter became even

more significant when Cutts testified, displaying the

fake emotional responses he was able to generate

when the spotlight was on him.

This evidence had probative value because it

went to the heart of the State’s burden of proof — that

Cutts intended to murder Jessie and her unborn child

that night and dispel the myth generated by the

defense that it was an accident. The testimony dem-

onstrated his attempts to cover up his crimes:

IX. Consecutive Sentences —- Allied Offenses

of Similar Import - Merger

Cutts argues that the trial court erred in im-

posing maximum, consecutive sentences in this case

for his convictions for aggravated murder, murder,

and aggravated burglary. He specifically argues that

“ Tr. Il, 818.

34

the maximum and consecutive sentences are not sup-

ported by facts or law, and asserts that the offenses

constituted allied offenses of similar import under

Ohio law. Once again, Cutts does not make a federal

constitutional argument in making this challenge. In

addition, his factual argument hinges upon whether

the offenses were committed separately or with a

separate animus. In essence, Cutts is urging this

Court to correct the errors allegedly committed below

by the courts in applying state law. Not only does

Cutts’ argument fail to properly invoke this Court’s

jurisdiction, but the argument also seeks to have this

Court correct the factual determinations of these

lower courts. Finally, the evidence did establish a

separate animus for the two homicides.

Cutts argues that the offenses he was convicted

of constituted allied offenses of similar import under

Ohio law, and thus the sentences in this case should

have been merged and imposed concurrently. The

court of appeals, however, correctly applied Ohio law

in determining that the offenses were committed with

a separate animus for each, based upon the facts in

the record. There were two victims to Cutts’ criminal

conduct, who were subjected to the separate animus

of Cutts. In addition, the aggravated burglary and

aggravated murder offenses are not only not allied

35

offenses of similar import, but the crimes were

committed with a separate animus.

X. Capital Specifications in Indictment

Cutts’ final argument once again makes only a

general due process claim while focusing on state law.

His argument deals with the definition of “person”

under Ohio law, and its application to the homicide of

a viable unborn child. Cutts argues that the trial

court should have dismissed the particular death

penalty specification that alleged he had caused the

death of two or more persons. Cutts’ challenge is

contingent upon the definition of “person” in the Ohio

criminal code, and whether that definition includes

an unborn child, and one who was due to be born in

two weeks. Cutts argues that his unborn daughter

does not qualify as a person.

The court of appeals held as a matter of state

statutory law that an “unborn human who is viable”

is a person for purposes of Ohio’s aggravated murder

statute, as well as Ohio’s aggravating circumstance of

multiple homicide which makes an aggravated mur-

der charge a capital offense. This holding involved the

court's interpretation of the definition of “person” in

Ohio R.C. 2901.01(B)(1\(a) to specifically include an

“unborn human who is viable.”

* See, e.g., State v. Reynolds, 80 Ohio St.3d 670, 681, 1998-

Ohio-171, 687 N.E.2d 1358, 1371 (citing cases).

36

Aggravated murder is statutorily defined in Ohio

in three ways: (1) purposeful death with prior calcula-

tion and design; (2) purposeful death while committing,

attempting to commit, or while fleeing immediately

after committing or attempting to commit certain

felonies; and, (3) purposeful death of a person un-

der the age of thirteen. Thus, the class of protected

victims in R.C. 2903.01(C) includes children under

the age of thirteen and unborn viable fetuses.

Therefore, under Ohio law, a defendant who has

purposely killed a pregnant woman and the fetus

inside her may be charged, assuming the other ma-

terial elements of the offenses are present, with

aggravated murder for each victim, i.e., the pregnant

woman and her unborn child, under subsections (A),

(B), and (C). The death of the pregnant woman may

result in an aggravated murder charge under either

R.C. 2903.01(A) or (B), or both; and the death of the

unborn fetus, whether viable or not, may result in

an aggravated murder charge under either R.C.

2903.01(B), or both, or under R.C. 2903.01(C) if the

unborn child was viable.

In conclusion, R.C. 2929.04(A) should be con-

strued to set forth a criminal offense (in conjunction

with R.C. 2903.01). As a result, the more expansive

definition of “person” under R.C. 2901.01(B)(1a)a)

to include a viable fetus applies to both the aggra-

vated murder statute and the aggravating circum-

stances provision of R.C. 2929.04(A). In this case,

therefore, the indictment charging Cutts with pur-

posely killing both Jessie Marie Davis and her unborn

37

child, Chloe, was proper under the law since Chloe

qualified as a person for purposes of the aggravated

murder charges and the death penalty specifications.

¢

CONCLUSION

For the reasons set forth in this brief in oppo-

sition, this Court should deny the petition for writ of

certiorari.

Respectfully submitted,

JOHN D. FERRERO,

Prosecuting Attorney,

Stark County, Ohio

RONALD MARK CALDWELL*

Ohio Sup. Ct. Reg. No. 0030663

Assistant Prosecuting Attorney

KATHLEEN QO. TATARSKY

Ohio Sup. Ct. Reg. No. 0017115

Assistant Prosecuting Attorney

STARK COUNTY PROSECUTOR’S OFFICE

110 Central Plaza, South

Suite 510

Canton, Ohio 44702-1413

(330) 451-7897

FAX: (330) 451-7965

RMCaldwe@co.stark.oh.us

*Counsel of Record for Respondent