[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State 

v. Sowell, Slip Opinion No. 2016-Ohio-8025.] 

NOTICE 

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published. 

SLIP OPINION NO. 2016-OHIO-8025

THE STATE OF OHIO, APPELLEE, v. SOWELL, APPELLANT.

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as State v. Sowell, Slip Opinion No. 2016-Ohio-8025.] 

Criminal Law—Aggravated murder—Right to public trial—Death penalty 

affirmed. 

(No. 2011-1921—Submitted April 5, 2016—Decided December 8, 2016.) 

APPEAL from the Court of Common Pleas of Cuyahoga County, 

No. CR-09-530885. 

______________ 

O’DONNELL, J.

{¶ 1} Anthony Sowell appeals from the judgment of the Cuyahoga County 

Common Pleas Court in connection with 11 capital convictions and sentences of 

death arising out of the serial killing of 11 women in Cleveland, Ohio. Sometime 

before October 28, 2009, Sowell kidnapped and murdered these 11 women and 

buried or concealed them at his home located at 12205 Imperial Avenue on the east 

side of Cleveland. Members of the Cleveland Police Department investigating a 

rape complaint against Sowell discovered the bodies of Diane Turner and Telacia 
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2

Fortson in Sowell’s house. Police later found the bodies of eight more women and 

the skull of another woman in or around the home, and they obtained additional 

evidence demonstrating that Sowell had attempted to kill three other women. 

{¶ 2} A grand jury returned an 85-count indictment against Sowell, and 

following trial in common pleas court, a jury convicted him of 11 counts of 

aggravated murder, each containing death-penalty specifications, and 

recommended death sentences for each of the 11 aggravated murders. The trial 

court accepted those recommendations and sentenced Sowell to 11 death sentences 

on those counts. 

{¶ 3} After review, we affirm Sowell’s convictions and death sentences. 

Facts and Procedural History 

{¶ 4} On October 28, 2009, a member of the Cleveland Police Department, 

investigating a rape complaint filed by Latundra Billups, obtained warrants to arrest 

Sowell and to search his home at 12205 Imperial Avenue in Cleveland. When 

officers executed the search warrant the next evening, Sowell was not at home. In 

a room on the third floor of the house, however, police found two decomposed 

female corpses lying on the floor, which DNA analysis later confirmed were the 

bodies of Diane Turner and Telacia Fortson. 

{¶ 5} Police obtained another warrant the next day and resumed searching 

Sowell’s house, this time accompanied by personnel from the county coroner’s 

office and a cadaver dog. They located a body beneath the basement staircase 

covered by a large mound of dirt and two more on the third floor, one inside a black 

plastic bag and one in a crawlspace concealed beneath more dirt. DNA analysis 

identified the body in the basement as Janice Webb, the body in the bag as Nancy 

Cobbs, and the body in the crawlspace as Tishana Culver. 

{¶ 6} In the backyard, the cadaver dog alerted to a spot near the back porch, 

where police located another body buried in a shallow grave that DNA analysis 

identified as Tonia Carmichael. 
January Term, 2016 

3

{¶ 7} The next day, on October 31, Sowell was seen on Mount Auburn 

Avenue by a member of the public who had recognized him from news broadcasts. 

Police were alerted and Sowell was arrested. 

{¶ 8} On November 3, police obtained another search warrant for Sowell’s 

residence and this time arranged for a backhoe to be brought to the property. They 

uncovered four more corpses and from DNA analysis eventually identified them as 

the bodies of Michelle Mason, Kim Smith, Amelda Hunter, and Crystal Dozier. In 

addition, a human skull, which DNA analysis eventually identified as belonging to 

Leshanda Long, was found in a black plastic bag inside a red bucket in the 

basement. No other parts of her body were located. 

{¶ 9} Autopsy results showed that Culver had suffered a fractured hyoid 

bone in her neck, suggesting manual strangulation. Seven bodies—Carmichael, 

Cobbs, Dozier, Fortson, Hunter, Mason, and Webb—had ligatures around their 

necks, and the coroners concluded that their deaths had been caused by ligature 

strangulation. The coroners further concluded that Long, Smith, and Turner were 

killed by “homicidal violence” of “undetermined” type. Other evidence showed 

that six bodies—Carmichael, Cobbs, Culver, Dozier, Smith, and Webb—had 

bindings, or the remains of bindings, around their wrists and/or ankles. 

{¶ 10} Following the investigation, a grand jury returned an 85-count 

indictment against Sowell. Counts 1 through 66 dealt with the 11 murder victims. 

Regarding each victim, the grand jury indicted Sowell on two counts of aggravated 

murder: one for prior calculation and design, R.C. 2903.01(A), and one for felony 

murder, R.C. 2903.01(B), predicated on kidnapping. 

{¶ 11} Each aggravated-murder count had 15 death-penalty specifications. 

Two felony-murder specifications pursuant to R.C. 2929.04(A)(7) were attached to 

each count—the first was predicated on kidnapping to terrorize or inflict serious 

physical harm on the victim and the second was predicated on kidnapping to engage 

in sexual activity with the victim against the victim’s will. 
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{¶ 12} In addition, each aggravated-murder count had 13 course-of-conduct 

specifications pursuant to R.C. 2929.04(A)(5), alleging that the murder was part of 

a course of conduct involving the purposeful killing of or attempt to kill two or 

more victims. Each course-of-conduct specification cited one of the other murders 

or attempted murders in this case as part of the course of conduct engaged in by 

Sowell. 

{¶ 13} Each aggravated-murder count and most of the noncapital counts 

also included a sexual-motivation specification pursuant to R.C. 2941.147, a 

sexually violent predator specification pursuant to R.C. 2941.148, a repeat-violentoffender specification pursuant to R.C. 2941.149, and a prior-conviction 

specification reflecting a prior conviction of attempted rape. 

{¶ 14} With respect to each murder victim, the indictment charged two 

counts of kidnapping: one under R.C. 2905.01(A)(3) (having a purpose to terrorize 

or to inflict serious physical harm) and another under R.C. 2905.01(A)(4) (having 

a purpose to engage in sexual activity with the victim against the victim’s will). 

Finally, the indictment charged one count of abuse of a corpse and one count of 

tampering with evidence with respect to each aggravated murder victim. 

{¶ 15} Counts 67 to 85 charged Sowell with crimes against Latundra 

Billups, Shawn Morris, and Gladys Wade, each of whom survived their encounters 

with Sowell. As to these victims, whom the state identified as Jane Does in the 

original indictment, Sowell was charged with two counts of kidnapping, pursuant 

to R.C. 2905.01(A)(3) and (A)(4), and one count of attempted murder, pursuant to 

R.C. 2923.02 and 2903.02(A). Sowell was also charged with two counts of rape 

committed against Billups and Morris and one count of attempted rape committed 

against Wade. Additionally, he was charged with two counts of felonious assault 

pertaining to Billups and one count each with regard to Morris and Wade. Finally, 

he was indicted for one count of the aggravated robbery of Wade. 
January Term, 2016 

5

{¶ 16} After the state’s presentation of evidence during the guilt phase of 

the trial, the defense moved for acquittal. The trial court granted the motion as to 

Counts 38, 39, and 40 (felony-murder and kidnapping of Long) and Specifications 

1, 2, and 16 (felony murder and sexual-motivation specifications) to Count 37 

(aggravated murder of Long with prior calculation and design). 

{¶ 17} The defense did not call any witnesses in its case-in-chief, but it 

submitted a number of exhibits into evidence before it rested. The jury returned 

verdicts finding Sowell not guilty of Count 85 (aggravated robbery of Wade) but 

guilty of all other counts and specifications. 

{¶ 18} Prior to the penalty phase of trial, the trial court merged the 

aggravated-murder counts for sentencing purposes. The state elected to proceed 

under R.C. 2903.01(A), and thus, the jury considered 11 counts of aggravated 

murder. Pursuant to the state’s election, the counts based on R.C. 2903.01(B) were 

not submitted to the jury during the penalty phase of the trial. 

{¶ 19} At the conclusion of its penalty-phase deliberations, the jury 

recommended death sentences for each of the 11 aggravated murders. The trial 

court accepted the recommendations and sentenced Sowell to death on each of the 

11 counts. 

{¶ 20} Sowell appealed as of right to this court pursuant to Article IV, 

Section 2(B)(2)(c) of the Ohio Constitution. 

Courtroom Closures 

{¶ 21} The trial court conducted an in camera session on July 21, 2010, 

involving a hearing on Sowell’s motion to suppress statements he made to police, 

and subsequent in camera sessions from June 6 through 21, 2011, relating to the 

individual voir dire of prospective jurors on attitudes toward the death penalty, 

pretrial publicity, and requests to be excused for hardship reasons. 

{¶ 22} Although Sowell did not present a proposition of law challenging the 

courtroom closures and thus failed to preserve the issue for appeal, see generally
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State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, on 

September 3, 2014, we ordered additional briefing on whether these closures denied 

Sowell his Sixth Amendment right to a public trial. 140 Ohio St.3d 1411, 2014-

Ohio-3785, 15 N.E.3d 881. 

The Suppression Hearing 

{¶ 23} Sowell moved to suppress statements made during a series of police 

interrogations on the basis that he had not been properly advised of his Miranda

rights and that he did not knowingly, intelligently, and voluntarily waive them 

because he suffered from a psychotic disorder or severe mental illness. 

{¶ 24} The trial court determined that due to the sensitive nature of the 

evidence regarding Sowell’s mental health issues and the potential prejudice to the 

jury pool, it would conduct the suppression hearing in camera. Defense counsel 

objected for the record. 

{¶ 25} At the hearing, the state presented testimony from police officers and 

video recordings of Sowell’s interrogation. In those recordings, Sowell never 

admitted to murdering the 11 victims and denied having any memory of killing 

them or knowing that their bodies were buried and hidden on his property. He 

explained that he had encountered various women, mostly from the Mount Pleasant 

area of East Cleveland where he lived, and from time to time he would hear a 

“voice” saying something about “bad people”; then he would “go blank” or “black 

out.” Sowell described dreams in which he “hurt somebody” by choking a woman 

with his hands. Sowell stated that after these dreams, he would wake up and would 

find that the woman had left without saying goodbye. When he woke from his 

dreams, his body felt “tired” as if he had been working. 

{¶ 26} He said that he had dreamed about the “bad ones” who were doing 

drugs or soliciting on the street when they had children or families, and he described 

himself as “the punisher.” These women needed to be punished because they were 

“cons” who tried to “hustle” him out of money and drugs. Sowell explained that 
January Term, 2016 

7

the voice in his head told him what he was “supposed to do. It’s like I was supposed 

to rape these girls.” Sowell admitted that all the women found in the house were 

bad, and he was able to give descriptions of some of the victims. 

{¶ 27} The trial court denied the motion to suppress these statements, 

finding that Sowell knowingly, intelligently, and voluntarily had waived his 

Miranda rights during the police interviews and that his statements were neither 

coerced nor the result of a psychosis that interfered with his ability to make free 

and rational choices. 

{¶ 28} The Sixth Amendment right to a public trial is a protection for the 

accused and extends to a hearing on a motion to suppress evidence. Waller v. 

Georgia, 467 U.S. 39, 46-47, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). However, “the 

right to an open trial may give way in certain cases to other rights or interests, such 

as the defendant’s right to a fair trial or the government’s interest in inhibiting 

disclosure of sensitive information.” Id. at 45. Accordingly, “the party seeking to 

close the [suppression] hearing must advance an overriding interest that is likely to 

be prejudiced, the closure must be no broader than necessary to protect that interest, 

the trial court must consider reasonable alternatives to closing the proceeding, and 

it must make findings adequate to support the closure.” Id. at 48, citing PressEnterprise Co. v. Superior Court of California, Riverside Cty., 464 U.S. 501, 104 

S.Ct. 819, 78 L.Ed.2d 629 (1984). 

{¶ 29} The Supreme Court in Waller recognized that the accused “should 

not be required to prove specific prejudice in order to obtain relief for a violation 

of the public-trial guarantee” during a suppression hearing, id. at 49, noting that the 

benefits of a public trial are “intangible, difficult to prove, or a matter of chance,” 

id. at fn. 9. Yet it held that the remedy for the violation in that case was not a new 

trial but a new suppression hearing, because “[i]f, after a new suppression hearing, 

essentially the same evidence is suppressed, a new trial presumably would be a 

windfall for the defendant, and not in the public interest.” Id. at 50. The court 
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8

concluded that “[a] new trial need be held only if a new, public suppression hearing 

results in the suppression of material evidence not suppressed at the first trial, or in 

some other material change in the positions of the parties.” Id. 

{¶ 30} The trial court in this case identified an overriding interest for 

conducting the hearing in camera, stating on the record that it had closed the 

courtroom “due to the sensitive nature of the evidence and potential for suppression 

of evidence that, if released to the public at this time, would potentially prejudice 

any jury pool.” Thus, the trial court undoubtedly recognized that given the intense 

media interest generated by Sowell’s trial involving the serial killing of 11 women 

in Cleveland, closing the suppression hearing was necessary to guarantee Sowell a 

fair trial and to avoid tainting the jury pool with statements that he would encounter 

various “bad” women in his neighborhood, hear a voice telling him to rape them, 

black out, and then dream of strangling them before waking to find them gone. 

{¶ 31} As the Supreme Court explained in Sheppard v. Maxwell, 384 U.S. 

333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), 

Due process requires that the accused receive a trial by an impartial 

jury free from outside influences. Given the pervasiveness of 

modern communications and the difficulty of effacing prejudicial 

publicity from the minds of the jurors, the trial courts must take 

strong measures to ensure that the balance is never weighed against 

the accused. * * * If publicity during the proceedings threatens the 

fairness of the trial, a new trial should be ordered. But we must 

remember that reversals are but palliatives; the cure lies in those 

remedial measures that will prevent the prejudice at its inception. 

The courts must take such steps by rule and regulation that will 

protect their processes from prejudicial outside interferences. 
January Term, 2016 

9

Id. at 362-363. The court also noted that a trial court has a duty to protect the 

accused from “inherently prejudicial publicity which saturate[s] the community.” 

Id. at 363. 

{¶ 32} Although the trial court recognized the high degree of public interest 

in the trial as well as the potential for publicity to prejudice Sowell’s right to a fair 

public trial, it did not make an express finding that the limited closure of the 

proceeding was in fact no broader than necessary to protect that interest. 

Nonetheless, it is apparent from the record that the trial judge concluded that the 

closure of the suppression hearing was no broader than necessary to protect 

Sowell’s right to a fair proceeding and to avoid prejudice to the jury pool. This 

case is factually distinguishable from Waller, where the trial court closed a sevenday suppression hearing to avoid revealing the contents of a two-and-one-half-hour 

wiretap audio recording, so that “the closure was far more extensive than 

necessary.” 467 U.S. at 49, 104 S.Ct. 2210, 81 L.Ed.2d 31. Here, closure was 

limited to considering the suppression of Sowell’s statements, and the court 

specifically stated that it would reopen the courtroom for argument on other 

matters. Thus, the trial court obviously concluded that closure was necessary to 

protect Sowell’s right to a fair trial, but it failed to state that finding on the record. 

From our review of the record, we are convinced that closure was no broader than 

necessary to protect that interest. 

{¶ 33} Nor did the trial court state on the record that it had considered 

reasonable alternatives to conducting the suppression hearing in camera, but it is 

obvious that the court had no reasonable alternative other than to close that limited 

proceeding to the public in order to protect the right of the accused to a fair public 

trial. The trial court understood that if Sowell’s statements were publicized but 

subsequently suppressed, then his right to a fair trial by an impartial jury would be 

compromised. Other than closing the hearing, there was no way for the court to 
SUPREME COURT OF OHIO

10 

examine the admissibility of Sowell’s statements without also possibly exposing 

those statements and prejudicing potential jurors. 

{¶ 34} Because the trial court identified an overriding interest supporting 

closure of the suppression hearing and because the record demonstrates that closure 

was narrowly drawn and limited in scope and was the only reasonable option to 

protect that interest, the trial court did not abuse its discretion in ordering the limited 

closure of the courtroom. 

{¶ 35} Waller is factually distinguishable from this case, but even if Waller

requires this court to presume prejudice from the closure of a suppression hearing, 

the remedy the Supreme Court adopted there is not applicable here. In Waller, the 

essence of the state’s case against the accused consisted of wiretaps and other 

evidence that, if suppressed, could have precluded the state from obtaining a 

conviction. Explaining that “the remedy should be appropriate to the violation,” 

the Supreme Court ordered a public suppression hearing and held that a new trial 

would be required only if the new hearing resulted in a “material change in the 

positions of the parties.” (Emphasis added.) Waller at 50. 

{¶ 36} That is not the case in this instance, however, because even if we 

presume prejudice from the closure of the courtroom, a new suppression hearing 

would not result in a material change in the positions of the parties. Based on the 

record, any reasonable jurist would find that Sowell knowingly, intelligently, and 

voluntarily waived his Miranda rights. Even assuming that Sowell’s statements to 

police would have been suppressed at a public hearing, the omission of those 

statements from the evidence presented at trial would not have affected the 

outcome. As we explained in State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, 

854 N.E.2d 150, ¶ 87, “[if] a new hearing could not materially change the position 

of the parties, there is no need for either a new hearing or a new trial.” 
January Term, 2016 

11 

{¶ 37} Although Sowell’s statements to police are incriminating, the state 

presented overwhelming independent evidence of guilt supporting Sowell’s 

convictions and sentence. 

{¶ 38} Police located ten bodies and one human skull on Sowell’s property; 

eight of the victims appeared to have been strangled to death, and many of the 

bodies were found nude or nude from the waist down and/or had bindings, or the 

remains of bindings, around their wrists and/or ankles. The condition of the bodies 

establishes Sowell’s course of conduct in kidnapping women, sexually assaulting 

them, and strangling them to death. And significantly, five of Sowell’s victims 

survived and testified at trial, providing proof of his course of conduct. 

{¶ 39} One, Vanessa Gay, testified that in September 2008, Sowell brought 

her to the third floor of his home to use drugs but then punched her in the face, 

ordered her to take off her clothes, and repeatedly raped her over several hours. 

When Sowell permitted her to go to the bathroom, she saw something in a room off 

the hallway that looked like a headless body, propped up in a seated position and 

“taped up.” When she returned to the bedroom, Sowell said repeatedly, “You’re 

going to tell, I know you’re going to tell,” but she persuaded him to let her go. 

{¶ 40} Another victim, Gladys Wade, testified that in December 2008, she 

had declined Sowell’s invitation to drink with him and was walking down Imperial 

Avenue when he grabbed her clothing, dragged her toward his house, and choked 

her until she lost consciousness. She awoke in Sowell’s house, and he ordered her 

to remove her clothes and punched her in the face. When she clawed his eyes and 

tried to escape, he began strangling her, saying, “you can scream all you want, 

you’re going to die.” She fought Sowell off, made it out of the house, and flagged 

down a police cruiser. Although Sowell was arrested, he was later released because 

the arresting officer mislabeled the offense on the incident report. 

{¶ 41} A third female, Tanja Doss, testified that she had previously dated 

Sowell and had accepted an invitation to “get high” at his house in April 2009. 
SUPREME COURT OF OHIO

12 

After they watched a basketball game and smoked crack, Sowell seized her by the 

throat and began choking her, saying, “you can be the next crack head bitch dead 

up in the street and nobody give a fuck about you.” She complied with his order to 

remove her clothes, and she lay down on the bed, “curled up in * * * a fetal 

position,” and cried herself to sleep. The next morning, Sowell acted as if nothing 

had happened. Doss made up a story about going to see her granddaughter in the 

hospital, and he let her leave. 

{¶ 42} Another victim, Latundra Billups, testified that she had previously 

smoked crack on the third floor of Sowell’s house and that sometime in September 

2009, she accompanied him to drink beer with him at his home. After they smoked 

crack, Sowell took her to a room on the second floor that was empty except for a 

blanket and a piece of an extension cord. He hit her hard in the face, ordered her 

to remove her clothes, and raped her. As he was raping her, he placed the extension 

cord around her neck and choked her until she blacked out. When she awoke hours 

later, Sowell appeared “startled” and “shocked.” He told her that he was going to 

kill her and himself “because he knew he was going to jail,” but she persuaded him 

to release her. 

{¶ 43} A fifth victim, Shawn Morris, testified that she met Sowell one 

morning in October 2009 and went to his home to drink and smoke crack. She left 

after five hours, but she came back to retrieve her identification card after she 

realized that she had left it in his house. After he opened the door and she came 

inside, Sowell placed her in a chokehold, forced her upstairs, ordered her to remove 

her clothes, and violently raped her. When he left the room to close windows to 

prevent her screaming from being heard, she escaped through a third-floor window 

and hung naked from a ledge. Sowell tried to pull her back in, but when he could 

not, he “shoved [her] down as hard as he could.” She fell to the ground, was 

seriously injured, and lost consciousness. Bystanders testified that Sowell, who 

was also naked, tried to bring her back inside the house while she was unconscious 
January Term, 2016 

13 

and bleeding, but a crowd had gathered and tried to prevent him from moving her 

due to the extent of her injuries. Although Sowell later did move her to the door of 

his house, emergency personnel arrived and transported her to the hospital. 

{¶ 44} These five witnesses not only established a behavioral fingerprint 

identifying Sowell as the person who murdered the 11 women found in his house 

and buried in his yard, but also their testimony showed that he engaged in a course 

of conduct in which he lured women to his home with the promise of drugs and 

then kidnapped, sexually assaulted, and strangled them to death. See State v. Lowe, 

69 Ohio St.3d 527, 531, 634 N.E.2d 616 (1994). If there were any doubt that it was 

Sowell who murdered these women, it was eviscerated by the testimony of Wade, 

Billups, and Morris that he also tried to kill them. 

{¶ 45} In his opening brief filed in this court, Sowell did not challenge the 

trial court’s ruling at the suppression hearing, nor did he challenge the sufficiency 

of the evidence supporting the convictions. Rather, his attorneys recounted the 

history of his case and wrote: “The jury, any jury, would find Sowell guilty of the 

22 counts of aggravated murder. The jury, any jury, would find Sowell guilty of at 

least one Course of Conduct specification for each aggravated murder.” Sowell 

argued that based on the “overwhelming evidence” of guilt, the only reasonable 

strategy at trial was to concede guilt rather than pursue a defense that there was 

reasonable doubt as to who killed the victims. These admissions fortify the 

conclusion that the trial court’s error in closing the suppression hearing prior to 

admitting Sowell’s statements to police was not material. 

{¶ 46} Accordingly, overwhelming independent evidence of guilt proves 

beyond a reasonable doubt that Sowell committed the aggravated murders of 11 

women and the felony-murder and course-of-conduct death specifications 

associated with those counts, including the pattern of behavior engaged in by 

Sowell, his course of conduct, his identification by those who escaped together with 

the site of the killings, and the elaborate efforts to conceal the bodies. And with 
SUPREME COURT OF OHIO

14 

respect to the 11 death sentences imposed in this case, the evidence establishes that 

the aggravating circumstances overwhelmingly outweigh the mitigating factors. 

{¶ 47} Thus, even if Sowell’s statements to police were suppressed, he 

would have been convicted and sentenced to death. Because the admission of his 

statements did not affect the outcome of the trial and because a new suppression 

hearing would not result in a material change in the positions of the parties, ordering 

a new suppression hearing would be a vain act, “an empty formality,” and just the 

type of “windfall” for the defendant that Waller sought to avoid. Bethel, 110 Ohio 

St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150, at ¶ 87.

Individual Voir Dire 

{¶ 48} The court also closed the courtroom during the individual voir dire 

of prospective jurors. Not only did the defense not object to the closure, but also it 

filed a “Request for Individually Sequestered Voir Dire” specifically asking that 

individual voir dire take place “outside the presence and hearing of other members 

of the venire” and specifically requesting “individual sequestered voir dire within 

the Court’s chambers.” (Emphasis added.) In addition, at a pretrial conference on 

November 23, 2010, defense counsel asked that voir dire be conducted 

“individually and in camera.” (Emphasis added.) Defense counsel argued that “it 

would be better to do this limited individualized questioning in chambers so the 

jurors don’t have to worry about the camera and that their responses will be 

broadcast, etc.” Counsel noted, “My experience is [that in-chambers voir dire] 

encourages the jurors to be more forthright” and “will put the jurors more at ease 

and get more honest answers.” Later, counsel again asked the court to “please note 

our preference of doing things in chambers initially.” 

{¶ 49} After the completion of the individual voir dire and at the request of 

the prosecution, the trial court stated on the record its reasons for closing the 

courtroom for individual voir dire. The prosecutor then asked whether Sowell was 
January Term, 2016 

15 

willing to affirmatively consent to the procedure the trial court had used, but 

defense counsel declined, stating: “We waive nothing, your Honor.” 

{¶ 50} The doctrine of invited error specifies that a litigant may not “take 

advantage of an error which he himself invited or induced.” Hal Artz LincolnMercury, Inc. v. Ford Motor Co., Lincoln-Mercury Div., 28 Ohio St.3d 20, 502 

N.E.2d 590 (1986), paragraph one of the syllabus. “This court has found invited 

error when a party has asked the court to take some action later claimed to be 

erroneous, or affirmatively consented to a procedure the trial judge proposed.” 

State v. Campbell, 90 Ohio St.3d 320, 324, 738 N.E.2d 1178 (2000). Moreover, 

the doctrine of invited error applies to the erroneous closure of courtroom 

proceedings. See State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 

81, ¶ 64, citing State v. Seiber, 56 Ohio St.3d 4, 17, 564 N.E.2d 408 (1990). 

{¶ 51} Sowell contends that his request for individually sequestered voir 

dire sought only to have each prospective juror’s voir dire conducted outside the 

presence of other prospective jurors. He denies that his motion requested that the 

individual voir dire also be closed to the public. However, a request for an “in 

chambers” or “in camera” voir dire is equivalent to a request to exclude the public, 

since a judicial chambers “is ordinarily not accessible to the public.” State v. Wise, 

176 Wash.2d 1, 12, 288 P.3d 1113 (2012). “In camera” has been defined to mean 

either “[i]n the judge’s private chambers” or “[i]n the courtroom with all spectators 

excluded.” (Emphasis added.) Black’s Law Dictionary 878 (10th Ed.2014). 

Moreover, a trial court may not exclude cameras from “court proceedings that are 

open to the public.” See Sup.R. 12(A). Thus, defense counsel’s explicit request 

for voir dire in chambers, with cameras excluded, cannot be interpreted as anything 

but a request to close the proceedings to the public. Further, defense counsel stated 

that the defense was not waiving the right to a public trial only after the closed 

individual voir dire that counsel had requested was completed. 
SUPREME COURT OF OHIO

16 

{¶ 52} Accordingly, Sowell invited the court to close the individual voir 

dire in this case, and pursuant to the invited-error doctrine, he is not entitled to 

complain of an error that he himself induced the trial court to commit. 

{¶ 53} Thus, Sowell’s supplemental propositions of law are overruled. 

Change of Venue 

{¶ 54} In the first proposition of law, Sowell contends that prejudicial 

pretrial publicity denied him a fair trial, that the publicity was so pervasive that the 

trial court should have presumed prejudice, and that the court erred by denying his 

requests for a change of venue. 

{¶ 55} The voir dire began in June 2011, more than 18 months after the 

discovery and exhumation at Sowell’s home located in a major metropolitan area. 

Although Sowell refers to Cleveland as a “small city,” the pool of jurors was drawn 

from Cuyahoga County, whose population in the 2010 Census was 1,280,122. See

www.census.gov/2010census/popmap/ipmtext.php?fl=39:39035 (accessed Oct. 17, 

2016). 

{¶ 56} The larger the community, the more likely that impartial jurors can 

be found within it. See State v. Gribble, 165 N.H. 1, 19-20, 66 A.3d 1194 (2013). 

And “[i]t is well recognized that in a small rural community ‘in contrast to a large 

metropolitan area, a major crime is likely to be embedded in the public 

consciousness with greater effect and for a longer time.’ * * * Thus both the size 

and the character of the county’s population, while not determinative, are factors to 

be considered.” People v. Hamilton, 48 Cal.3d 1142, 1158, 259 Cal.Rptr. 701, 774 

P.2d 730 (1989), quoting People v. Martinez, 29 Cal.3d 574, 581, 174 Cal.Rptr. 

701, 629 P.2d 502 (1981). 

{¶ 57} The record indicates widespread knowledge of the case in Cuyahoga 

County. Almost 200 prospective jurors completed a questionnaire containing a 

question about pretrial publicity. Responses to that question indicate that only 

about six of the prospective jurors had not been exposed in some form to pretrial 
January Term, 2016 

17 

publicity about the case. During voir dire, 128 members of the venire were 

questioned about pretrial publicity. Of these, all but three had been exposed to 

some pretrial publicity about Sowell’s case, but 62 of them stated that they had not 

formed an opinion about the case and could set aside whatever they had heard; 17 

others had formed opinions about Sowell’s guilt but stated that they were able to 

set their opinions aside and decide the case on the basis of the evidence presented 

in court. Eight others had formed opinions, but the court excused them for other 

reasons. Only 22 jurors were excused for cause on the ground that they had formed 

opinions that they could not set aside. 

{¶ 58} Sowell relies on Irvin v. Dowd, 366 U.S. 717, 727, 81 S.Ct. 1639, 6 

L.Ed.2d 751 (1961), where “370 prospective jurors or almost 90% of those 

examined on the point * * * entertained some opinion as to guilt,” and 268—over 

62 percent of those examined on pretrial publicity—were actually excused “as 

having fixed opinions as to the [accused’s] guilt.” That is not the circumstance 

exhibited in this case, and Irvin is therefore factually distinguishable. The publicity 

prior to Sowell’s trial was not so pervasive that Sowell was denied a fair trial. 

{¶ 59} In State v. Lundgren, 73 Ohio St.3d 474, 479-480, 653 N.E.2d 304 

(1995), we held that the court had not abused its discretion in denying a change of 

venue under circumstances comparable to those in this case: 

The trial court selected a jury following an extensive eightday voir dire which included individualized questioning as to 

the impact of pretrial publicity. The trial court readily excused 

those in the venire who had formed fixed opinions or were 

otherwise unsuitable. The jurors selected did not appear to 

have been excessively exposed to media publicity. Those who 

said they held views expressed tentative impressions and all 

of the jurors selected promised to set aside any information 
SUPREME COURT OF OHIO

18 

received or views held and decide the case only on the 

evidence offered at trial. Despite the fact that pretrial 

publicity was extensive, the trial judge was in the best position 

to judge each juror’s demeanor and fairness. [The accused] 

has not established the rare case in which prejudice is 

presumed. 

{¶ 60} Similarly, here, we cannot conclude that the trial court abused its 

discretion in denying Sowell’s motions for change of venue. We overrule this 

proposition of law. 

Voir Dire 

Discussion of Mitigating Factors 

{¶ 61} Sowell’s second proposition of law asserts that the trial court 

impermissibly restricted voir dire of prospective jurors by refusing to let defense 

counsel inquire of them regarding their understanding of and attitudes toward the 

mitigating factors that could arise based on the evidence in the case. This claim is 

not well taken. In State v. Jones, 91 Ohio St.3d 335, 338, 744 N.E.2d 1163 (2001), 

this court held: “During voir dire, a trial court is under no obligation to discuss, or 

to permit the attorneys to discuss, specific mitigating factors.” Thus, this 

proposition of law is overruled. 

Challenges for Cause 

{¶ 62} The third proposition of law contends that the trial court erred in 

overruling challenges for cause to a number of prospective jurors. 

{¶ 63} On a challenge for cause, “[t]he ultimate question is whether the 

‘juror sw[ore] that he could set aside any opinion he might hold and decide the case 

on the evidence, and [whether] the juror’s protestation of impartiality [should be] 

believed.’ ” (Brackets sic.) White v. Mitchell, 431 F.3d 517, 538 (6th Cir.2005), 

quoting Patton v. Yount, 467 U.S. 1025, 1036, 104 S.Ct. 2885, 81 L.Ed.2d 847 
January Term, 2016 

19 

(1984). A trial court’s resolution of a challenge for cause will be upheld on appeal 

unless it is so unsupported by substantial testimony that it constitutes an abuse of 

discretion. State v. Tyler, 50 Ohio St.3d 24, 31, 553 N.E.2d 576 (1990); State v. 

Wilson, 29 Ohio St.2d 203, 211, 280 N.E.2d 915 (1972). 

Death Qualification 

{¶ 64} A defendant has a constitutional right to exclude for cause any 

prospective juror who will automatically vote for the death penalty. Morgan v. 

Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992). “A juror who will 

automatically vote for the death penalty in every case will fail in good faith to 

consider the evidence of aggravating and mitigating circumstances as the 

instructions require him to do.” Id. at 729. 

{¶ 65} Question 7 on the jury questionnaire asked: “In your opinion, is the 

death penalty the only appropriate sentence in a case involving the purposeful 

killing of 11 people * * * at separate times over a two and one-half year period or 

would a sentence of life in prison without the possibility of parole also be an 

appropriate sentence?” Sowell contends that several prospective jurors answered 

this and other questions in a way that shows them to be automatic votes for a death 

sentence in the event of conviction. 

{¶ 66} In response to this question, Juror 23 wrote: “Yes, the death penalty 

is appropriate if found guilty.” However, in response to a different question asking 

jurors to state “your GENERAL FEELINGS regarding the death penalty” 

(boldface and capitalization sic), Juror 23 stated: “an eye for an eye seems fair 

depending on the circumstances. But I think it’s on a case by case basis.” On 

Question 8, asking whether a life sentence with possible parole after 25 or 30 full 

years could be appropriate, Juror 23 wrote: “I’m not sure if any of these questions 

can be answered without first hearing the facts.” And on Question 9, which asked: 

“What would be important for you to know in deciding whether to impose a life 

sentence without the possibility of release or a sentence of death?” the juror wrote: 
SUPREME COURT OF OHIO

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“Everything.” The answers to Questions 8 and 9 support the trial court’s finding 

that Juror 23 was not an automatic-death-penalty juror. 

{¶ 67} That is further confirmed by Juror 23’s voir dire, which Sowell 

glosses over in his focus on the questionnaire. Juror 23 said: “[E]very situation is 

different, but * * * if someone knowingly and purposely kills another human being, 

* * * you would have to look at their reasons for it, and why, and * * * if * * * they 

knew exactly what they were doing, then I think they should also die.” Juror 23 

later disagreed when defense counsel suggested that the following statement 

represented his views: “[R]egardless of the second phase, if you take a life * * * in 

phase one, if you‘re found guilty, and you’ve taken a life, then your life must be 

taken.” Juror 23 responded: “No. * * * I said on a case-by-case circumstance.” He 

stated that he could consider each of the life alternatives if the aggravating 

circumstances were outweighed by the mitigating factors. Thus, the record 

supports the trial court’s ruling on Sowell’s challenge for cause. 

{¶ 68} On the questionnaire, Juror 46 answered the question regarding 

whether the death penalty was the only appropriate sentence by stating, “I strongly 

believe he should go straight to death row with no chance of appeals. The only 

decision left to be made is the date of his execution.” However, on voir dire she 

said she could consider all three of the lesser options. When asked about what she 

had written on her questionnaire, she stated: “My answer is based on all of the 

* * * information that I had going into this case, without knowing the evidence, 

without knowing * * * any other * * * details.” She stated: “Those are my views, 

but * * * if I was chosen as a juror, I would take it as my job, I would take it 

seriously and I would leave all of that at the door.” Accordingly, the record 

supports the trial court’s denial of Sowell’s for-cause challenge to this juror. 

{¶ 69} Juror 60 was asked during voir dire if he would consider a 

defendant’s background in deciding on a sentence. Juror 60 agreed “[o]nly to the 

extent that it was part of the evidence presented by either side or both sides * * *. 
January Term, 2016 

21 

If that was part of the evidence * * * as to what happened and why and so on, only 

to that extent. Otherwise, no.” He then stated that he would consider “all factors 

that are relevant presented by both sides,” but “[o]nly relevant factors.” He clarified 

that if either side brought up something that was “totally irrelevant to what is being 

discussed,” he would “disregard that as a nonissue.” 

{¶ 70} The defense challenged Juror 60 for cause on the ground that he “has 

his own concept of what is relevant, which may be inconsistent with what the law 

says.” The trial judge overruled the challenge. The judge found that Juror 60’s 

answer indicated that he “doesn’t take any preconceived opinions with him 

concerning anything” and “would consider all factors.” 

{¶ 71} Juror 60 was not an automatic-death-penalty juror and thus had not 

“already formed an opinion on the merits.” Morgan, 504 U.S. at 728, 112 S.Ct. 

2222, 119 L.Ed.2d 492. Moreover, the trial court appears to have understood Juror 

60’s statement that he would “disregard” evidence that was “totally irrelevant to 

what is being discussed” as meaning that he would give no weight to evidence that 

he did not find to be mitigating. The judge’s view of Juror 60’s words is reasonable. 

{¶ 72} Question 8 on the jury questionnaire asked: “In your opinion, in a 

case [involving the purposeful killing of 11 people], would a sentence of life in 

prison with the possibility of parole after either 25 full years of imprisonment, or 

30 full years of imprisonment, also be an appropriate sentence?” Sowell claims 

that several prospective jurors should have been disqualified because their answers 

to Question 8 indicated that they were unable to consider the full range of possible 

life-sentencing options. 

{¶ 73} Juror 21 answered “No” to question 8 with no elaboration. But, 

while the defense challenged Juror 21 for cause, it did not challenge him on the 

ground Sowell now cites—his alleged inability to consider the full range of 

sentencing options. Moreover, as Sowell concedes, Juror 21 stated during voir dire 
SUPREME COURT OF OHIO

22 

that he could fairly consider a life sentence with possible parole after either 25 or 

30 full years. 

{¶ 74} Juror 22 answered “No” to question 8 without further elaboration. 

But on voir dire, she stated that she could fairly consider the options of life with 

possible parole after 25 or 30 full years. 

{¶ 75} Juror 24 said during voir dire that she “would not lean toward” life 

with parole eligibility after 25 full years and that she “would be more negative 

toward that.” When asked what her answer “today” would be to question 8 about 

a life sentence with possible parole, she said: “My answer today is leaning toward 

no. I might have a little bit of flexibility, but I am definitely leaning towards no.” 

This answer applied to the parole-after-25-years life sentence; asked about life with 

possible parole after 30 years, she stated: “That’s a possibility that I may be more 

flexible and say possibly.” But she repeated that she could not fairly consider life 

with possible parole after 25 years. 

{¶ 76} After follow-up questioning about some of the concepts, the 

prosecutor asked Juror 24 to explain her answer on the questionnaire stating that a 

sentence of life with possible parole after 25 or 30 years would not be appropriate. 

Juror 24 stated: “[F]rom what you’re saying to me, it changed my opinion on the 

no.” (Emphasis added.) 

{¶ 77} Under defense questioning, she again stated that she could not fairly 

consider a life sentence with parole eligibility after 25 years: 

MR. PARKER: * * * So the question is, even though Mr. 

Sowell * * * in this hypothetical, he’s been found guilty of 

aggravated murder and * * * at least one of the specifications * * *, 

under that situation * * * can you fairly consider a sentence of 25 

full years of imprisonment before the possibility of parole? 
January Term, 2016 

23 

JUROR NO. 24: I was given the option of 30 prior, and it 

seems to make a difference to me. 

 MR. PARKER: Okay, we’ll ask both. Let’s start with 25. 

 JUROR NO. 24: No. 

 MR. PARKER: The answer for 25 is no? 

 JUROR NO. 24: Yes. 

 MR. PARKER: You’d have an easier time with 30? 

 JUROR NO. 24: Easier time with 30. 

 MR. PARKER: Twenty-five, your answer is no. 

 JUROR NO. 24: No. 

(Capitalization sic.) 

{¶ 78} Finally, the trial judge explained to the juror that “we’re not asking 

you to choose a sentence today” and then stated: 

The only thing we want to know is * * * if the State is not 

able to prove that death is an appropriate sentence, would you be 

able to consider all three of those life options? 

In other words, I think the question is going to be are you 

going to rule out one right off the bat, because that’s the way you 

feel today, and there is nothing that is going to change your mind? 

JUROR NO. 24: You really helped clarify it, my answer is 

not no, it’s yes. 

THE COURT: You would consider all three? 

JUROR NO. 24: I would in that case. 

(Capitalization sic.) 
SUPREME COURT OF OHIO

24 

{¶ 79} Juror 24’s final response suggests that her earlier answers were the 

product of confusion. Once the specifics were clarified for her, her answer was 

“not no, but yes.” This final response indicated that she would consider all three 

life options. 

{¶ 80} Juror 34 answered “No” without elaboration to Question 8 regarding 

the propriety of a life sentence with possible parole. However, on voir dire, he was 

asked if “after listening to everything, after weighing everything,” he could “fairly 

consider a sentence of * * * 25 full years to life?” He said: “Yes, I probably could.” 

{¶ 81} Juror 36 indicated on her questionnaire that death or life without 

parole would be the only appropriate sentences and that life with possible parole 

after 25 or 30 years would not be appropriate. At one point during voir dire, she 

appeared to reiterate that opinion. However, the trial court asked her whether she 

could consider all three sentencing options, and she stated that she could. 

{¶ 82} Juror 62 indicated on her questionnaire that a life sentence with 

possible parole after 25 or 30 years would not be an appropriate sentence, in her 

opinion. On voir dire, asked again to give “just [her] opinion,” she stated that death 

was the only appropriate penalty for the purposeful, planned killing of an innocent 

person. Nevertheless, when asked on voir dire if she could consider the options of 

“25 full years to life” or “30 full years to life,” Juror 62 stated that she could 

consider both “after hearing the facts.” 

{¶ 83} In each of these instances, the trial court determined that the juror’s 

protestation of impartiality should be believed. See Patton, 467 U.S. at 1036, 104 

S.Ct. 2885, 81 L.Ed.2d 847. And in each instance, the trial court’s determination 

was supported by “substantial testimony” given by each juror. Tyler, 50 Ohio St.3d 

at 31, 553 N.E.2d 576. Each challenged juror indicated that he or she was able to 

put aside his or her opinion that a life sentence involving possible parole was 

inappropriate for a case similar to this one. 
January Term, 2016 

25 

{¶ 84} The trial court did not abuse its discretion when it accepted the sworn 

statements of these jurors on voir dire that they could set aside the opinions they 

had expressed on the questionnaire. It was the trial court’s province to determine 

each juror’s credibility, and the record does not show that the trial court abused its 

discretion with respect to any of these jurors. 

Pretrial Publicity or Knowledge of Case 

{¶ 85} Juror 22, who has been mentioned previously, answered yes to a 

question on her questionnaire asking whether she had “read, seen or heard media 

accounts” of this case. She wrote that she recalled “[h]ow they kept finding more 

& more bodies buried in and around this man’s house. And the painfull [sic] 

reactions of so many families * * *.” 

{¶ 86} On voir dire, Juror 22 admitted forming an opinion “[t]hat more than 

likely Mr. Sowell was * * * the perpetrator” because “[t]he evidence that I heard 

through the media pointed in that direction.” However, she specifically stated on 

voir dire that she would set aside that opinion and anything she had previously 

heard and would base her decision solely on the evidence that would come before 

her. She also stated that she had not been “glued to the TV wanting to know” about 

the murders. And while she recalled seeing televised reports on the finding of the 

bodies, she did not “know * * * any fine details.” 

{¶ 87} When the defense challenged Juror 22 for cause, counsel argued that 

her “body language” contradicted her promise to set aside what she had heard about 

the case. The trial judge rejected that claim: “I don’t think there was any body 

language that would indicate that she was trying to say two different things.” This 

is the type of credibility determination that falls within the trial court’s discretion. 

We decline to disturb it. 

{¶ 88} Juror 62, who has been mentioned previously, disclosed on voir dire 

that she had once lived across from Sowell’s house on Imperial Avenue. The 

defense challenged this juror for cause in part because, according to defense 
SUPREME COURT OF OHIO

26 

counsel, “it seems that she has quite a bit more information about the particular case 

than I think she’s really telling us.” However, nothing in the record supports that 

impression. Juror 62 had lived on Imperial Avenue “about 30 years earlier” and 

for only “a couple of months.” Her decades-old connection with the area provides 

no reasonable basis to disturb the trial judge’s decision to deny the challenge for 

cause. 

{¶ 89} None of the claims in this proposition of law justify a finding that 

the trial court abused its discretion in denying these challenges for cause. This 

proposition is not well taken. 

Guilt Phase 

Use of Initials to Sign Verdicts 

{¶ 90} In the tenth proposition of law, Sowell argues that 195 of the 196 

verdicts the jury returned failed to comply with the requirement of Crim.R. 31(A) 

and R.C. 2945.171 that the verdict be “signed” by the jurors. 

{¶ 91} When the court submitted the case to the jury during the guilt phase 

of trial, it noted that the jury would probably have “a couple hundred verdict forms 

* * * to complete.” The judge said: “In order to facilitate that, * * * I think you can 

sign your names to the first series of verdict forms and perhaps even initial after 

your name so we have an idea or recognition of your initials. Then you can 

probably use your initials after that because as long as we know that it’s your mark 

and that it is your verdict, then it is a proper form.” 

{¶ 92} After the jury was instructed to deliberate, defense counsel objected 

to the trial court’s decision to permit the jurors to complete the verdict forms by 

initialing them. The jurors completed the verdict forms as suggested by the trial 

court. 

{¶ 93} Crim.R. 31(A) provides: “The verdict shall be unanimous. It shall 

be in writing, signed by all jurors concurring therein, and returned by the jury to 

the judge in open court.” Likewise, R.C. 2945.171 provides: “In all criminal cases 
January Term, 2016 

27 

the verdict of the jury shall be in writing and signed by each of the jurors concurring 

therein.” 

{¶ 94} Sowell contends that “signed,” as used in Crim.R. 31(A) and R.C. 

2945.171, requires more than mere initials—that these provisions create a 

“requirement of signing one’s name.” The state argues that initials can constitute 

a signature if the juror initialing the verdict form so intends and if there is no 

prejudice from the use of initials. 

{¶ 95} In cases involving statutory interpretation, the court “must begin [its] 

analysis by examining the language of the statute.” State v. Hanning, 89 Ohio St.3d 

86, 91, 728 N.E.2d 1059 (2000). “Words and phrases shall be read in context and 

construed according to the rules of grammar and common usage. Words and 

phrases that have acquired a technical or particular meaning, whether by legislative 

definition or otherwise, shall be construed accordingly.” R.C. 1.42. 

{¶ 96} The term “signed” is not limited in meaning to the writing of one’s 

name in full. Black’s Law Dictionary defines the verb “sign” as follows: “To 

identify (a record) by means of a signature, mark, or other symbol with the intent 

to authenticate it as an act or agreement of the person identifying it * * *.” 

(Emphasis added.) Black’s at 1593. See also 2 Burrill, Law Dictionary and 

Glossary 467 (2d Ed.1860) (signature may be “expressed by the party's initials”); 

2 Rapalje & Lawrence, A Dictionary of American and English Law 1192 (1883) 

(“a person signs a document when he writes or marks something on it in token of 

his intention to be bound by its contents”). 

{¶ 97} In construing the term “signed,” we note that Crim.R. 1(B) provides 

that the Rules of Criminal Procedure “shall be construed and applied to secure the 

fair, impartial, speedy, and sure administration of justice, simplicity in procedure, 

and the elimination of unjustifiable expense and delay.” See also R.C. 2901.04(B). 

{¶ 98} We conclude that the term “signed,” as used in Crim.R. 31(A) and 

R.C. 2945.171, is not limited to full signatures and that Crim.R. 31(B) will permit 
SUPREME COURT OF OHIO

28 

jurors to use their initials to sign verdict forms at the direction of a trial court in the 

exercise of its discretion. Doing so will promote speed, administration of justice, 

and simplicity in procedure. Nor can we see any reason to suppose that our 

construction in this instance would hinder the “fair, impartial, speedy, and sure 

administration of justice.” 

{¶ 99} Our conclusion in this case recognizes that the jurors had 196 verdict 

forms to sign during the guilt phase of the trial, and in these circumstances, we do 

not believe that the trial court acted unreasonably, unconscionably, or arbitrarily by 

permitting jurors to sign one verdict form with their full signatures and then 

permitting them to use their initials to signify assent to the 195 remaining verdicts. 

Nothing in the record suggests that any of the jurors did not actually initial the 

verdict forms or that they did not intend their initials to function as their signatures. 

Accordingly, we overrule this proposition of law. 

Admission of Victim-Impact Evidence 

{¶ 100} In the sixth proposition, Sowell alleges that the trial court violated 

his constitutional rights by admitting victim-impact evidence during the guilt phase 

of trial, when family members of the victims testified about the victims. Sowell, 

however, fails to identify any specific testimony that should have been excluded 

and states in general terms that the state called 21 witnesses whose testimony filled 

800 pages continued within nine volumes of transcript. “We are not obligated to 

search the record or formulate legal arguments on behalf of the parties * * *.” 

Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, at ¶ 19. 

Accordingly, this proposition of law is overruled. 

Indictment 

Death Specifications 

{¶ 101} In the 11th and 12th propositions of law, Sowell takes issue with 

the manner in which the death specifications were alleged in the indictment and 

with the instructions submitted to the jury. 
January Term, 2016 

29 

Course-of-Conduct Specifications 

{¶ 102} The 11th proposition of law alleges that the state charged Sowell 

with duplicative course-of-conduct specifications. 

{¶ 103} The indictment charged Sowell with 13 course-of-conduct death 

specifications for each count of aggravated murder. Each course-of-conduct 

specification charged him with a course of conduct consisting of the purposeful 

killing of the victim named in the aggravated-murder count and the purposeful 

killing (or attempt to kill) one of the other victims. For example, Count 1 charged 

Sowell with the aggravated murder of Tonia Carmichael. Specification 3 to Count 

1 charged that the aggravated murder of Carmichael “was part of a course of 

conduct in which the offender purposely killed Tonia Carmichael and also 

purposely killed Nancy Cobbs.” Specification 4 was identical, except that Tishana 

Culver’s name was substituted for that of Cobbs. Thus, each victim of aggravated 

murder or attempted murder was named in a separate course-of-conduct 

specification. 

{¶ 104} We have repeatedly held that this is not the correct way to allege 

course-of-conduct specifications under R.C. 2929.04(A)(5). “Multiple course-ofconduct specifications are duplicative and must be merged at the sentencing phase. 

* * * In fact, such multiple course-of-conduct specifications should not even be 

included in an indictment.” State v. Mitts, 81 Ohio St.3d 223, 231, 690 N.E.2d 522 

(1998). “Each aggravated murder count should thus contain only one specification 

that [the defendant’s] acts were part of a course of conduct involving the purposeful 

killing of or attempt to kill two or more persons.” State v. Spisak, 36 Ohio St.3d 

80, 84, 521 N.E.2d 800 (1988). 

{¶ 105} However, we have also stated: “[I]f such multiple specifications are 

included in an indictment, the ‘trial court should instruct the jury in the penalty 

phase that those duplicative specifications must be considered merged for purposes 

of weighing the aggravating circumstances against the mitigating factors.’ ” Mitts
SUPREME COURT OF OHIO

30 

at 231, quoting State v. Garner, 74 Ohio St.3d 49, 53, 656 N.E.2d 623 (1995). As 

Sowell concedes, in this case, the trial court did instruct the jury that the duplicative 

course-of-conduct specifications were merged into a single course-of-conduct 

specification. 

{¶ 106} Sowell contends, however, that the trial court’s correct instruction 

to the jury to consider only one course-of-conduct specification for each aggravated 

murder was insufficient to prevent prejudice. He argues that “the spillover effect 

of having previously determined 13 course-of-conduct specifications is inescapable 

and necessarily tainted the weighing process.” This contention is speculative at 

best and inconsistent with the presumption that jurors follow the instructions given 

by a trial court judge. See, e.g., State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio160, 840 N.E.2d 1032, ¶ 54. 

{¶ 107} Sowell also points out that the prosecutor’s closing penalty-phase 

argument repeatedly stressed the number of victims involved in this case. 

However, there was nothing unfairly prejudicial in asking the jurors to consider the 

number of murders and attempted murders. The jury is required to consider 

evidence relevant to “the nature and circumstances of the aggravating 

circumstances.” R.C. 2929.03(D)(1). Even though there was only one course of 

conduct, the number of murders and attempted murders making up that course of 

conduct is relevant to the nature and circumstances of the aggravating 

circumstance. 

{¶ 108} Accordingly, Sowell’s 11th proposition is overruled. 

Felony-Murder Specifications 

{¶ 109} The felony-murder specifications attached to each aggravatedmurder count1

 charged that Sowell either “was the principal offender in the 

commission of the Aggravated Murder, or, if not the principal offender, committed 

 

1

 Since the felony-murder specifications relating to Leshanda Long’s murder were not submitted to 

the jury, this claim applies to the other ten aggravated murders. 
January Term, 2016 

31 

the Aggravated Murder with prior calculation and design.” During the guilt phase 

of the trial, when instructing the jury on the felony-murder specification, the court 

did not instruct the jurors that in order to convict Sowell of that specification, they 

had to agree unanimously on which of these two alternatives (principal offender or 

prior calculation and design) they found Sowell guilty. 

{¶ 110} Sowell’s 12th proposition of law correctly notes that the trial 

court’s failure to so instruct constitutes error. See State v. Moore, 81 Ohio St.3d 

22, 40, 689 N.E.2d 1 (1998). 

{¶ 111} Sowell’s contention is that the jury may have reached “patchwork 

verdicts” on the specification, i.e., finding him guilty of the specification without 

unanimously finding that one of the two alternatives had been proven. Sowell 

concedes, however, that he failed to object at trial, and therefore plain error is the 

appropriate standard of review. 

{¶ 112} Plain error does not exist in this instance, because the jury 

unanimously found Sowell guilty of each of the aggravated-murder counts. And 

for each victim, one of the aggravated-murder counts alleged that Sowell acted with 

prior calculation and design. Those verdicts reflect the jury’s unanimous 

determination that Sowell had committed each of the murders with prior calculation 

and design. Hence, contrary to Sowell’s argument, there is no possibility that the 

trial court’s omission of the unanimity instruction in this case led to a patchwork 

verdict. See State v. Woodard, 68 Ohio St.3d 70, 75, 623 N.E.2d 75 (1993); Moore

at 40, citing State v. Burke, 73 Ohio St.3d 399, 405, 653 N.E.2d 242 (1995). 

{¶ 113} Thus, Sowell cannot demonstrate that the outcome of the guilt 

phase clearly would have been different but for the alleged error. No plain error is 

present, and Sowell’s 12th proposition is overruled. 

“Carbon-Copy” Rape Counts 

{¶ 114} The indictment against Sowell contained two pairs of identically 

phrased rape counts. Count 72 is identical to Count 73, and Count 78 is identical 
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32 

to Count 79. Counts 72 and 73 charged Sowell with raping “Jane Doe II,” i.e., 

Latundra Billups, as follows: 

RAPE R.C. 2907.02(A)(2) 

DATE OF OFFENSE: September 22, 2009 

The Grand Jurors, on their oaths, further find that the 

Defendant(s) unlawfully engaged in sexual conduct with Jane Doe 

II, by purposely compelling her to submit by force or threat of force, 

contrary to the form of the statute in such case made and provided 

and against the peace and dignity of the State of Ohio. 

(Boldface, capitalization, and underlining sic.) 

{¶ 115} Similarly, Counts 78 and 79 charged Sowell with raping “Jane Doe 

III,” i.e., Shawn Morris, as follows: 

RAPE R.C. 2907.02(A)(2) 

DATE OF OFFENSE: October 20, 2009 

The Grand Jurors, on their oaths, further find that the 

Defendant(s) unlawfully did engage in sexual conduct with Jane 

Doe III by purposely compelling her to submit by force or threat of 

force, contrary to the form of the statute in such case made and 

provided and against the peace and dignity of the State of Ohio. 

(Boldface, capitalization, and underlining sic.) 

{¶ 116} In his fourth proposition of law, Sowell contends that the inclusion 

of these “carbon-copy” charges in the indictment denied him due process because 

they denied him adequate notice of the specific charges against him and because 

they left him open to being subjected to future jeopardy for the same offenses. 
January Term, 2016 

33 

{¶ 117} Sowell’s claim is based on Valentine v. Konteh, 395 F.3d 626 (6th 

Cir.2005). In Valentine, the defendant was indicted on 20 counts of rape of a minor 

and 20 counts of felonious sexual penetration of a minor. All 20 rape counts were 

worded identically with one another; likewise, all 20 penetration counts were 

worded identically with one another. Each count alleged that the offense had 

occurred “between March 1, 1995 and January 16, 1996.” Neither the indictment 

nor the bill of particulars differentiated among the counts in any way. 

{¶ 118} At trial, the victim testified that the defendant had raped her about 

20 times and digitally penetrated her about 15 times. No dates were given for any 

of these incidents, nor were any other specific facts given whereby the trier of fact 

might have identified specific incidents. The defendant was convicted of 20 counts 

of rape and of felonious sexual penetration, although a court of appeals reversed 

five convictions for felonious sexual penetration. Valentine at 628-629. 

{¶ 119} The Sixth Circuit determined that the accused in Valentine had been 

denied due process and was entitled to habeas corpus relief. The court explained 

that an indictment satisfies due process only “if it (1) contains the elements of the 

charged offense, (2) gives the defendant adequate notice of the charges, and (3) 

protects the defendant against double jeopardy.” Id. at 631. 

{¶ 120} Valentine held that the indictment in that case failed to give 

constitutionally adequate notice of the charges. 

[T]he constitutional error in this case is traceable * * * to the fact 

that there is no differentiation among the counts. * * * [I]f 

prosecutors seek multiple charges against a defendant, they must 

link those multiple charges to multiple identifiable offenses. * * * 

Courts cannot uphold multiple convictions when they are unable to 

discern the evidence that supports each individual conviction. 
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395 F.3d at 636-637. 

{¶ 121} For similar reasons, the state’s failure in Valentine to differentiate 

the charges, either in the indictment or at trial, also failed to protect the defendant 

against the future possibility of double jeopardy. “We cannot be sure what double 

jeopardy would prohibit because we cannot be sure what factual incidents were 

presented and decided by this jury.” Id. at 635. 

{¶ 122} This case is factually distinguishable from Valentine. First, instead 

of two sets of 20 identically phrased charges, this case presents two sets of two

identically phrased charges. Moreover, each set of identical counts in this case 

alleges that the rapes took place on specifically identified dates, rather than over a 

period of eight and one-half months as in Valentine. And the state’s evidence at 

trial showed that four specific, different acts of rape took place: two against Billups 

and two against Morris. Billups testified at trial that Sowell raped her twice on 

September 22, 2009, and Morris testified that Sowell raped her twice on October 

20, 2009. 

{¶ 123} On these facts, it cannot be said that “there was no differentiation 

among the counts.” 395 F.3d at 636. Unlike Valentine, the record in this case does 

not leave the court “unable to discern the evidence that supports each individual 

conviction.” Id. at 637. Rather, Valentine involved a situation with little 

resemblance and no applicability to this case. This proposition of law lacks merit. 

No Allegation that Aggravation Outweighs Mitigation 

{¶ 124} In his 14th proposition, Sowell argues that the indictment against 

him was insufficient because it failed to allege that the aggravating circumstances 

outweigh the mitigating factors beyond a reasonable doubt. He claims that the 

intersection of Ohio and federal constitutional law requires that an averment of this 

type be included in a capital indictment. 

{¶ 125} Sowell notes the Ohio Constitution’s guarantee that “no person 

shall be held to answer for a capital, or otherwise infamous, crime, unless on 
January Term, 2016 

35 

presentment or indictment of a grand jury.” Article I, Section 10, Ohio 

Constitution. Citing Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 

L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 

L.Ed.2d 556 (2002), Sowell then argues that the fact that the aggravating 

circumstances outweigh the mitigating factors is “the functional equivalent of an 

element,” Apprendi at 494, fn. 19, of the capital offense, because a jury’s 

determination that the aggravating circumstances outweigh the mitigating factors 

is required for a death sentence under Ohio law. Finally, because the “fact” that 

the aggravating circumstances outweigh the mitigating factors is to be considered 

an “element” of the offense, Sowell argues that “it must be first found by the grand 

jury and included in the indictment” before it can be submitted to a petit jury. 

{¶ 126} His claim is not well taken. Apprendi and Ring are rooted in the 

Sixth Amendment right to a jury trial. “Other than the fact of a prior conviction, 

any fact that increases the penalty for a crime beyond the prescribed statutory 

maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 

(Emphasis added.) Apprendi at 490. 

{¶ 127} In contrast, “[t]he purposes of an indictment are to give an accused 

adequate notice of the charge, and enable an accused to protect himself or herself 

from any future prosecutions for the same incident.” State v. Buehner, 110 Ohio 

St.3d 403, 2006-Ohio-4707, 853 N.E.2d 1162, ¶ 7. “[W]e have recognized that 

even when an indictment fails to charge the mens rea of the offense, it is not 

defective as long as it ‘tracks the language of the criminal statute describing the 

offense,’ because that suffices to ‘provide[ ] the defendant with adequate notice of 

the charges against him.” (Brackets sic.) State v. Wesson, 137 Ohio St.3d 309, 

2013-Ohio-4575, 999 N.E.2d 557, ¶ 24, quoting State v. Horner, 126 Ohio St.3d 

466, 2010-Ohio-3830, 935 N.E.2d 26, ¶ 45. Similarly, “[a]n indictment that tracks 

the language of the charged offense and identifies a predicate offense by reference 
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to the statute number need not also include each element of a predicate offense.” 

Buehner at the syllabus. 

{¶ 128} In this case, the capital charges in the indictment tracked the 

language of R.C. 2903.01(A) and (B), and the death specifications tracked the 

language of R.C. 2929.04(A)(5) and (A)(7). Sowell does not contend that the 

indictment’s omission of any averment as to the relative weight of aggravation and 

mitigation deprived him of adequate notice of the charges against him. Thus, the 

indictment satisfies Article I, Section 10 of the Ohio Constitution, and this 

proposition of law is overruled. 

Penalty Phase 

Exclusion of Sowell’s Plea Offer 

{¶ 129} Sowell’s eighth proposition of law asserts that the trial court should 

have permitted the defense to inform the jury during the penalty phase that he had 

offered to plead guilty in exchange for a life sentence. Sowell claims that this offer 

was evidence of his acceptance of responsibility, and he argues the trial court was 

required to admit it into evidence. 

{¶ 130} We previously considered and rejected a similar argument in State 

v. Dixon, 101 Ohio St.3d 328, 2004-Ohio-1585, 805 N.E.2d 1042, stating: “The 

trial court also ruled correctly by not allowing Dixon to introduce his offer to plead 

guilty in exchange for dismissal of the death specifications. * * * [A] defendant’s 

offer to plead guilty, never accepted by the prosecutor, is not relevant to the issue 

of whether the defendant should be sentenced to death.” Id. at ¶ 69; see also Owens 

v. Guida, 549 F.3d 399, 419-422 (6th Cir.2008) (collecting cases). We reaffirm our 

holding in Dixon, and accordingly, we reject this claim. 

Mercy Instruction 

{¶ 131} The eighth proposition of law also claims that the trial court 

improperly refused to give a proposed mercy instruction: “Mercy is a mitigating 

factor that weighs against voting for the death penalty * * *.” We have consistently 
January Term, 2016 

37 

rejected similar claims. See State v. Lorraine, 66 Ohio St.3d 414, 417-418, 613 

N.E.2d 212 (1993); State v. O’Neal, 87 Ohio St.3d 402, 416, 721 N.E.2d 73 (2000); 

State v. Williams, 99 Ohio St.3d 439, 2003-Ohio-4164, 793 N.E.2d 446, ¶ 93. In 

accord, this eighth proposition of law is overruled. 

“Presumption of Life” Instruction 

{¶ 132} Sowell’s ninth proposition of law asserts that the trial court erred 

by failing to instruct the jury to apply a “presumption” in favor of a life sentence. 

{¶ 133} Sowell had requested a jury instruction that “there is a presumption 

of life until and unless the state proves beyond a reasonable doubt that the 

aggravating circumstances outweigh the mitigating factors and that death is the only 

appropriate punishment.” The court declined the requested instruction, but did 

instruct the jury: 

In order for you to decide that the sentence of death shall be 

imposed upon Anthony Sowell, the State of Ohio must prove 

beyond a reasonable doubt that the aggravating circumstances of 

which the defendant was found guilty are sufficient to outweigh the 

factors in mitigation of imposing the death sentence. 

The defendant does not have any burden of proof. 

The trial court later instructed that after considering the evidence relevant to the 

aggravating circumstances and the mitigating factors, the jurors were to 

then decide whether the State of Ohio proved beyond a reasonable 

doubt that the aggravating circumstances outweigh the mitigating 

factors present in this case. 

* * * 
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If you find that the State of Ohio has failed to prove beyond 

a reasonable doubt that the aggravating circumstances Anthony 

Sowell is guilty of committing are sufficient to outweigh the 

mitigating factors present in this case, then it is your duty to decide 

that the sentence of life imprisonment without the possibility of 

parole should be imposed upon the defendant. 

{¶ 134} We have held that “it is prejudicial error in a criminal case to refuse 

to administer a requested charge which is pertinent to the case, states the law 

correctly, and is not covered by the general charge.” State v. Scott, 26 Ohio St.3d 

92, 101, 497 N.E.2d 55 (1986). “However, the trial court need not give the 

defendant’s requested instructions verbatim but may use its own language to 

communicate the same legal principles to the jury.” State v. Group, 98 Ohio St.3d 

248, 2002-Ohio-7247, 781 N.E.2d 980, ¶ 108, citing State v. Sneed, 63 Ohio St.3d 

3, 9, 584 N.E.2d 1160 (1992). 

{¶ 135} As defense counsel explained to the trial court when arguing in 

favor of the proposed instruction, the “presumption of life” instruction was intended 

to convey “that the State has the burden of proof at all times” and in particular, “the 

burden of proving * * * that the aggravating circumstances outweigh the mitigating 

factors beyond a reasonable doubt. * * * Life is the default judgment * * * unless 

the State meets their burden.” 

{¶ 136} Here, the trial court’s instructions properly conveyed the state’s 

burden of proof, and the requested instruction was therefore “covered by the general 

charge.” Scott at 101. This ninth proposition of law is not well taken. 

Ineffective Assistance of Counsel 

{¶ 137} In the fifth and 17th propositions of law, Sowell alleges that his trial 

counsel rendered ineffective assistance of counsel. 
January Term, 2016 

39 

{¶ 138} To establish ineffective assistance of counsel, an appellant must 

show (1) deficient performance by counsel, i.e., performance falling below an 

objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable 

probability that, but for counsel’s errors, the outcome of the proceeding would have 

been different. Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 

2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 

(1989), paragraphs two and three of the syllabus. 

{¶ 139} The fifth proposition of law contends that defense counsel rendered 

ineffective assistance by not conceding Sowell’s guilt during the guilt phase of trial. 

The argument is that the evidence of guilt was so overwhelming that a reasonabledoubt defense was hopeless. Under those circumstances, Sowell contends, 

conceding guilt was “the only reasonable strategy,” because the only thing to do 

was to throw all possible effort into avoiding a death sentence. No rational lawyer, 

he argues, would have tried to obtain an acquittal. 

{¶ 140} Sowell relies on Florida v. Nixon, 543 U.S. 175, 125 S.Ct. 551, 160 

L.Ed.2d 565 (2004), which held that a defense trial counsel, who failed to obtain 

the defendant’s consent to the strategy, had not rendered ineffective assistance by 

expressly conceding his client’s guilt in the guilt phase and attempting instead to 

focus on saving his client’s life. Nixon explained why competent counsel might 

feel that conceding the client’s guilt would be the best strategy in a capital case: 

when the defendant’s guilt is clear, pursuing a reasonable-doubt defense in the guilt 

phase may be counterproductive, fostering cynicism in the jurors and making them 

less receptive to mitigating factors in the penalty phase. Id. at 192. “Counsel 

therefore may reasonably decide to focus on the trial’s penalty phase, at which time 

counsel’s mission is to persuade the trier that his client’s life should be spared.” Id. 

{¶ 141} Nixon holds that choosing not to contest guilt may be a reasonable 

strategy in a given case and does not stand for the proposition that it is 
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40 

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

evidence. 

Because of the difficulties inherent in making the evaluation, a court 

must indulge a strong presumption that counsel’s conduct falls 

within the wide range of reasonable professional assistance; that is, 

the defendant must overcome the presumption that, under the 

circumstances, the challenged action “might be considered sound 

trial strategy.” 

Strickland, 466 U.S. at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674, quoting Michel v. 

Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955).

{¶ 142} Sowell fails to demonstrate prejudice because his claim depends on 

speculation about the jury’s possible reaction to his counsel’s strategy. But 

speculation is insufficient to demonstrate prejudice as defined by Strickland, i.e., a 

reasonable probability that, but for counsel’s alleged errors, the outcome of the 

proceeding would have been different. This proposition is overruled. 

{¶ 143} In the 17th proposition of law, Sowell contends that his counsel 

were ineffective in failing to preserve the alleged errors that are the subjects of his 

fourth, sixth, and 12th propositions of law. He argues that in a capital case, “the 

failure to preserve error must be deemed inherently deficient” and “necessarily” 

prejudicial. 

{¶ 144} To the contrary, “[t]he failure to object to error, alone, is not enough 

to sustain a claim of ineffective assistance of counsel.” State v. Holloway, 38 Ohio 

St.3d 239, 244, 527 N.E.2d 831 (1988). And Sowell’s definition of prejudice is not 

supported by Strickland. It is not enough that an alleged error resulted in a 

disadvantage for an accused. See Strickland, 466 U.S at 693, 104 S.Ct. 2052, 80 

L.Ed.2d 674 (it is not sufficient for a defendant to show that errors impaired 
January Term, 2016 

41 

presentation of the defense). Strickland’s prejudice inquiry focuses on the 

likelihood that, “but for counsel’s unprofessional errors, the result of the proceeding 

would have been different.” (Emphasis added.) Id. at 694. 

{¶ 145} Sowell further contends that counsel’s failure to object to 

“duplicate” Counts 72, 73, 78, and 79 in the indictment based on Valentine v. 

Konteh constituted ineffective assistance of counsel. But as noted in the discussion 

of his fourth proposition, Valentine is readily distinguishable on its facts, and 

counsel’s failure to make a Valentine-based objection to the indictment was not 

deficient performance. Nor could Sowell demonstrate prejudice, because the 

unrebutted testimony of Latundra Billups and Shawn Morris established that 

Sowell raped each of them twice on the specific dates alleged in the indictment, so 

he cannot show that but for counsel’s failure to object, he would not have been 

convicted on those counts. 

{¶ 146} Sowell next argues that his counsel failed to object to “victim 

impact evidence” in the guilt phase. However, as explained in the discussion of his 

sixth proposition of law, he fails to identify any specific evidence or testimony that 

should have been excluded. Thus, he fails to show either deficient performance or 

prejudice. See Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, 

at ¶ 19. 

{¶ 147} Finally, Sowell urges that counsel failed to object to the felonymurder specifications alleging in the alternative that he was the principal offender 

or that he killed with prior calculation and design. As noted in the discussion of 

the 12th proposition of law, the trial court erred in the instructions given to the jury 

in this regard. But—as we explained in the discussion of that proposition—the jury 

unanimously found Sowell guilty of felony murder with prior calculation and 

design. For this reason, he cannot demonstrate that the outcome would have been 

different but for the error. Thus, the 17th proposition of law is overruled. 

 
SUPREME COURT OF OHIO

42 

Cumulative Error

{¶ 148} In the 16th proposition of law, Sowell claims that the cumulative 

effect of the various errors he alleges denied him a fair trial. However, “[a]s 

[Sowell] offers no further analysis, this proposition lacks substance.” State v. Sapp, 

105 Ohio St.3d 104, 2004-Ohio-7008, 822 N.E.2d 1239, ¶ 103. This proposition is 

overruled. 

Constitutional Challenges to Death Penalty Statutes 

Denial of Jury Sentencing in Guilty-Plea Cases 

{¶ 149} The 13th proposition of law claims that Ohio law denies capital 

defendants who plead guilty their constitutional right to a jury determination of 

whether the aggravating circumstance outweigh the mitigating factors. In this case, 

however, Sowell did not plead guilty but rather was tried by jury. Thus, he has no 

standing to raise the issue of what he would have been entitled to had he elected to 

plead guilty. 

{¶ 150} He further claims that Crim.R. 11(C)(3) unconstitutionally 

penalizes a capital defendant’s exercise of his right to a jury trial. But we have 

rejected similar attacks on Crim.R. 11(C)(3). See, e.g., State v. McKnight, 107 Ohio 

St.3d 101, 2005-Ohio-6046, 837 N.E.2d 315, ¶ 51, citing State v. Dickerson, 45 

Ohio St.3d 206, 214, 543 N.E.2d 1250 (1989), and State v. Buell, 22 Ohio St.3d 

124, 138, 489 N.E.2d 795 (1986). Therefore, this proposition is overruled. 

Settled Issues 

{¶ 151} “The proportionality review required by R.C. 2929.05(A) is 

satisfied by a review of those cases already decided by the reviewing court in which 

the death penalty has been imposed.” State v. Steffen, 31 Ohio St.3d 111, 509 

N.E.2d 383 (1987), paragraph one of the syllabus. In his 15th proposition, Sowell 

asks this court to reconsider Steffen’s interpretation of R.C. 2929.05(A) with respect 

to the scope of proportionality review. But he offers no persuasive reason for us to 

do so, and we decline his invitation. Sowell also argues that Ohio’s death-penalty 
January Term, 2016 

43 

scheme provides constitutionally inadequate appellate review of the proportionality 

of the death sentence. We reject this claim. See Steffen at 123, citing Pulley v. 

Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984); State v. LaMar, 95 Ohio 

St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 23. 

{¶ 152} In the 18th proposition of law, Sowell claims that the death penalty 

and Ohio’s statutory provisions for its administration are unconstitutional and 

violate international law. Having already rejected each of those claims in prior 

cases, we summarily overrule his 18th proposition of law. See generally Spisak, 36 

Ohio St.3d at 82, 521 N.E.2d 800; State v. Poindexter, 36 Ohio St.3d 1, 520 N.E.2d 

568 (1988), syllabus. 

Independent Sentence Review 

{¶ 153} Sowell was sentenced to death on 11 counts of aggravated murder. 

A sentence of death can be affirmed only if we find beyond a reasonable doubt that 

the aggravating circumstances he was found guilty of committing outweigh the 

mitigating factors. R.C. 2929.05(A). In his seventh proposition of law, Sowell 

contends that on independent review, this court should find that the aggravating 

circumstances do not outweigh the mitigating factors beyond a reasonable doubt 

for any of the 11 aggravated murders he committed. 

Aggravating Circumstances 

{¶ 154} R.C. 2929.04 describes the death-penalty specifications to be 

included in an indictment and provides: 

(A) Imposition of the death penalty for aggravated murder is 

precluded unless one or more of the following is specified in the 

indictment or count in the indictment pursuant to section 2941.14 of 

the Revised Code and proved beyond a reasonable doubt: 

* * * 
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(5) Prior to the offense at bar, the offender was convicted of 

an offense an essential element of which was the purposeful killing 

of or attempt to kill another, or the offense at bar was part of a course 

of conduct involving the purposeful killing of or attempt to kill two 

or more persons by the offender. 

* * * 

(7) The offense was committed while the offender was 

committing, attempting to commit, or fleeing immediately after 

committing or attempting to commit kidnapping, rape, aggravated 

arson, aggravated robbery, or aggravated burglary, and either the 

offender was the principal offender in the commission of the 

aggravated murder or, if not the principal offender, committed the 

aggravated murder with prior calculation and design. 

{¶ 155} The jury returned verdicts finding Sowell guilty of 13 course-ofconduct specifications for each victim, R.C. 2929.04(A)(5). With respect to ten of 

the aggravated murders, the jury also found him guilty of two felony-murder 

specifications under R.C. 2929.04(A)(7): one predicated on kidnapping under R.C. 

2905.01(A)(3) (having a purpose to terrorize or to inflict serious physical harm) 

and one predicated on kidnapping under R.C. 2905.01(A)(4) (having a purpose to 

engage in sexual activity with the victim against the victim’s will). And on each of 

the felony-murder specifications, the jury further found that Sowell was either the 

principal offender or had acted with prior calculation and design. 

{¶ 156} Before submitting the case to the jury at the penalty phase, the trial 

court merged the 13 course-of-conduct specifications into a single one for each 

aggravated murder. The court further merged the two kidnapping specifications 

into a single one for each of the ten aggravated murders to which they applied. 

Accordingly, this court has two aggravating circumstances to weigh against the 
January Term, 2016 

45 

mitigating factors for the murders of Carmichael, Cobbs, Culver, Dozier, Fortson, 

Hunter, Mason, Smith, Turner, and Webb—i.e., course-of-conduct and felonymurder specifications. 

{¶ 157} The felony-murder specifications for Leshanda Long’s murder 

were dismissed under Crim.R. 29. Hence, only the course-of-conduct aggravating 

circumstance remains to be weighed against the mitigating factors for that murder. 

{¶ 158} The overwhelming evidence presented at trial supports the jury’s 

findings that these aggravating circumstances existed. 

Mitigating Factors 

{¶ 159} We are required to determine whether the aggravating 

circumstances proven in this case outweigh the mitigating factors beyond a 

reasonable doubt. In doing so, we consider whether there is anything mitigating 

about the “nature and circumstances of the offense, [or] the history, character, and 

background of the offender,” R.C. 2929.04(B), as well as the following specific 

mitigating factors: R.C. 2929.04(B)(1) (victim inducement), (B)(2) (duress, 

coercion, or strong provocation), (B)(3) (mental disease or defect), (B)(4) (youth of 

the offender), (B)(5) (lack of a significant criminal record), (B)(6) (accomplice 

only), and (B)(7) (any other relevant factors). 

{¶ 160} Sowell was born in Cleveland in 1959. In the 1960s, his parents 

divorced, and he was raised by his mother, Claudia Garrison. Also living with 

Claudia were her mother, Irene Justice, and Sowell’s siblings Tressa Garrison and 

Owen “Junior” Davis. Sowell’s sister, Patricia Davis Hatcher, died in 1969, and 

Claudia took in Patricia’s children, Robin, Ramona, Leona, and Monica Davis and 

Pearl, Jesse Darnel, and Nate Hatcher. 

{¶ 161} Ramona and Leona Davis testified that they and Monica were 

subjected to regular, severe abuse while living with Claudia. If one of the children 

did something wrong, Claudia would strip the child naked, tie her to a bannister, 

and beat her with an extension cord until Claudia was tired or Irene would beat the 
SUPREME COURT OF OHIO

46 

child with a switch or cane. A beating might take place at any time, including at 

2:00 or 3:00 a.m., and sometimes for a petty reason such as a dirty dish being left 

in the sink. Jesse testified that Claudia gave him similar beatings that were 

administered almost daily and were at times severe enough to draw blood. 

{¶ 162} According to the Davis children, Claudia never subjected her own 

children to these beatings. However, the other children, including Sowell, observed 

the beatings. At times, Jesse testified, Sowell “sat there and laughed.” 

{¶ 163} Leona Davis also testified that when she was ten years old, Sowell 

(who was then about 11) raped her almost every day. 

{¶ 164} Sowell attended Prospect Elementary School and Kirk Junior High 

in East Cleveland. His teachers during spring 1971 and 1972-1973 testified that he 

was an “average” or “unexceptional” student, sometimes enthusiastic, with a good 

or near-perfect attendance record. Neither teacher observed any indication that he 

had been physically abused. 

{¶ 165} Lori James-Townes, a social worker and Director of Social Work 

for the Maryland Public Defender’s office who also has a private forensic practice, 

investigated and testified about Sowell’s family history. She found that Sowell had 

been subjected to emotional abuse, including witnessing the other children being 

beaten and being told by his mother that he would never amount to anything. 

Moreover, Claudia told James-Townes that she had awakened him and beaten him 

with a cord on one occasion. 

{¶ 166} James-Townes testified that Sowell told her that he had been 

sexually molested during his childhood, but she found no evidence to corroborate 

this. However, she testified that Sowell’s molestation of Leona Davis was a “red 

flag that something’s going on in the house.” 

{¶ 167} In 1978, Sowell entered active duty in the Marine Corps and served 

until 1985. Walter C. Bansley, a criminal attorney and former Marine officer and 
January Term, 2016 

47 

Judge Advocate, reviewed Sowell’s military records and rendered his expert 

opinion as to what they revealed about Sowell. 

{¶ 168} When Sowell graduated from boot camp, he was immediately 

promoted to private first class, the only Marine in his 55-member platoon to receive 

this “extreme distinction.” He was awarded two Good Conduct Medals, each 

reflecting three years of service without disciplinary action, and received additional 

awards for good performance. He was promoted successively to lance corporal, 

corporal, and sergeant. He was chosen to attend an advanced electrician’s school; 

according to Bansley, only 30 percent of Marines in any given military occupational 

specialty are chosen for an advanced school. 

{¶ 169} During his Marine career, Sowell was involved in what Bansley 

described as two minor disciplinary matters. Both times, he received “nonjudicial 

punishment” rather than a court-martial; according to Bansley, this indicates that 

Sowell’s superiors thought he had potential and did not consider the incidents 

significant. Despite these incidents, Sowell’s conduct marks exceeded the 

requirement for an honorable discharge, which he received in 1985. In Bansley’s 

opinion, Sowell was an “above average” Marine. 

{¶ 170} In 1990, Sowell was convicted of attempted rape, and he served 15 

years in prison. Roosevelt Lloyd, a convicted rapist, served ten years with him at 

Grafton Correctional Institution, working alongside him and sharing a cubicle with 

him for seven years. Lloyd described Sowell as “a nice, loving, caring person.” 

Lloyd said he had been “in shock” when he learned what Sowell had done. Lloyd 

expressed strong loyalty to Sowell: “I love that man * * * and he will always be my 

friend. * * * I want to be by his side regardless of what happens * * *.” 

{¶ 171} In prison, Sowell was a food handler, which Lloyd described as “a 

very responsible position.” It was his responsibility to make sure that each of 

Grafton’s estimated 1,400 to 1,600 inmates had a meal at mealtimes. This involved 
SUPREME COURT OF OHIO

48 

supervising cooks, keeping track of the number of meals served, and ensuring that 

the portions were correct. 

{¶ 172} Soon after his release in 2005, Sowell enrolled in a program called 

“Towards Employment” offered in part to help place ex-offenders in jobs, and he 

took a job-readiness workshop. Deborah Lucci, who helped place Sowell in a job, 

testified that he was neat, clean, and punctual, had good attendance, and “presented 

himself as job ready.” Towards Employment helped Sowell find a job operating 

an injection-mold machine at a Cleveland business that manufactured rubber 

products. A former coworker testified that he performed well. 

{¶ 173} In February 2007, Sowell suffered a heart attack and was 

hospitalized. Eventually he returned to work. He was initially put on light duty, 

then was released to return to full duty. However, by July 2007 he was physically 

unable to perform his duties and had to leave his job. 

{¶ 174} Four officers from the Cuyahoga County Jail testified that Sowell 

was well-behaved during his pretrial incarceration. Indeed, two described him as a 

“model inmate.” 

{¶ 175} Dr. Dale Watson, a clinical and forensic neuropsychologist, 

testified on behalf of Sowell. He performed a comprehensive set of 

neuropsychological evaluations on Sowell, administering between 45 and 50 tests, 

including tests designed to detect malingering, over three sessions totaling 19 

hours. 

{¶ 176} Dr. Watson concluded that Sowell showed “probably * * * a 

moderate degree of [brain] dysfunction or impairment.” Dr. Watson concluded that 

Sowell had “had some sort of neurological event that affected his processing 

speed.” He noted that “a heart attack where there’s not adequate oxygenation” 

could “impact brain function.” Dr. Watson further concluded that Sowell’s results 

did not indicate malingering. 
January Term, 2016 

49 

{¶ 177} Dr. Watson testified that Sowell claimed that after his heart attack, 

he had auditory hallucinations. Specifically, Sowell reported hearing a voice, 

which he called “Arnie.” However, when Dr. Watson raised this subject again, 

Sowell denied having had such hallucinations. Dr. Watson believed Sowell’s initial 

claim and questioned his later denial. 

{¶ 178} Dr. Diana Goldstein, a neuropsychologist who testified on behalf 

of the state, examined Sowell’s medical records and reached conclusions that 

differed sharply from Dr. Watson’s. Dr. Goldstein found nothing in Sowell’s 

medical records to support a history of cognitive or psychiatric disorder, before or 

after Sowell’s heart attack. 

{¶ 179} She noted that Sowell’s doctors had not requested neurodiagnostic 

testing on him after the heart attack, which would have been called for if he had 

had the type of heart attack that leads to respiratory failure. She also noted that, in 

the emergency room, Sowell’s Glasgow coma scale score was a maximum 15, 

which indicates that there was no brain injury, and that his oxygen-saturation levels 

when he arrived at the emergency room were 96 percent. She stated that “all of 

that indicates that there was not a neurologic event” that would have compromised 

Sowell’s brain functioning. 

{¶ 180} Dr. Goldstein also reviewed Dr. Watson’s report. She concluded 

that in all cognitive domains, Sowell’s testing indicated normal functioning. There 

was a minority of “abnormal” test findings that she said were “difficult to explain, 

given how well he does on all of the other tests that measure the exact same thing.” 

Since there was no evidence that Sowell was undergoing a “medical crisis” at the 

time Dr. Watson was testing him, Dr. Goldstein concluded that “fluctuations in 

effort” explained the anomalous results. Dr. Goldstein testified that this did not 

necessarily mean that Sowell malingered, but she could not rule out malingering. 

{¶ 181} Dr. George Woods, a neuropsychiatrist, interviewed Sowell three 

times for a total of about six or seven hours and testified that Sowell lacked the 
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substantial capacity to conform his conduct to the requirements of the law. Dr. 

Woods diagnosed Sowell with the following conditions: (1) obsessive-compulsive 

disorder (“OCD”), which Dr. Woods described as severe, chronic, and sexual in 

nature; (2) posttraumatic stress disorder (“PTSD”) essentially consisting of two 

types, one resulting from “type-two trauma,” a “chronic ongoing trauma” such as 

would result from “ongoing childhood abuse” and another from “type-one trauma,” 

a single traumatic event such as a heart attack; (3) psychosis not otherwise 

specified; and (4) cognitive disorder not otherwise specified. 

{¶ 182} Dr. Woods explained that childhood abuse causes anxiety, which 

leads to compulsive behavior stemming from a desire to control that anxiety. He 

described an obsessive-compulsive “cycle”: obsessive thoughts lead to anxiety; 

anxiety leads to attempts to control the anxiety by means of compulsive behavior; 

compulsive behavior brings temporary relief, but then the anxiety returns. For 

OCD sufferers, “control is everything”; if the sufferer loses control, “the response 

is completely out of proportion to the stimulus.” A structured setting helps the 

OCD sufferer control his compulsions, by reducing anxiety. 

{¶ 183} Dr. Woods testified that Sowell performed well in the structured 

setting of the military; in civilian life after his discharge, he worked for a time, then 

his obsessions got the better of him and he was convicted of attempted rape. He 

then performed well in the structured environment of prison. After Sowell’s release 

from prison, his work provided structure, and he was successful at his job, but after 

his heart attack, he lost his job. This removed the structure that, according to Dr. 

Woods, helped him control his obsessions. Depression impaired his ability to think. 

{¶ 184} Dr. Woods also observed that OCD and PTSD “augment each 

other,” creating “both atypical and more severe symptoms” than if only one 

disorder is present. PTSD can cause dysregulation, which is a tendency to overreact 

or underreact; Sowell’s tendency was to overreact. If one is dysregulated and at the 
January Term, 2016 

51 

same time is attempting to control anxiety, the resulting compulsive behavior can 

be “very terrible.” 

{¶ 185} Dr. James Knoll IV testified for the state in rebuttal. He is a fulltime practicing psychiatrist and forensic psychiatrist who has studied and published 

on the subject of serial murder. He strongly disagreed with Dr. Woods’s 

conclusions. 

{¶ 186} Dr. Knoll noted that a 2005 report prepared by the Cuyahoga 

County Court Psychiatric Clinic showed an absence of significant psychiatric 

illness in Sowell’s life. Moreover, county jail records that he reviewed indicated 

that antipsychotic medications had not been prescribed for Sowell during his twoyear pretrial incarceration. 

{¶ 187} Dr. Knoll also noted that Sowell had not been diagnosed with OCD 

while in the Marines. “A true diagnosis of genuine significant obsessivecompulsive disorder would quite likely be the end of one’s military career,” he 

testified, because OCD would substantially interfere with one’s functioning. Dr. 

Knoll also testified that Dr. Woods’s diagnosis of severe, chronic OCD with sexual 

obsession was flawed, because “there’s simply no such diagnosis in existence in 

psychiatry.” 

{¶ 188} Dr. Knoll believed that Dr. Woods did not adequately consider the 

possibility that Sowell was malingering when he reported auditory hallucinations. 

To Dr. Knoll, Dr. Woods’s report indicated no effort to “delve into” Sowell’s claim 

of hearing voices. In the forensic setting, Dr. Knoll testified, it is “fundamental” to 

consider possible malingering, and “failure to do so is a critical error.” 

{¶ 189} Another “serious error” in Dr. Woods’s analysis, according to Dr. 

Knoll, was his failure to consider sexual sadism as a diagnosis. Dr. Knoll testified 

that sexual sadism is a “paraphilia,” a mental disorder involving sexual deviancy, 

in which the sadist is aroused by the fear and suffering of his victim. According to 
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Dr. Knoll, sexual sadism, domination and control, and anger toward an “identified 

victim pool” are common motivations in serial murders. 

{¶ 190} Dr. Knoll testified that murder by choking or strangulation suggests 

sexual sadism, as does the use of bindings or restraints. He further noted that the 

testimony of the victims who survived Sowell’s assaults indicates Sowell’s intense 

anger at women. Additionally, Sowell had previously committed a “sadistic rape” 

in 1989 in which he had bound, gagged, and choked the victim. 

{¶ 191} Dr. Knoll also testified that inability to control conduct is a 

“controversial” subject in forensic psychiatry, because there are “no specific 

scientific methods to determine that.” 

{¶ 192} Sowell made an unsworn statement in court. Much of it repeated 

previous testimony offered on his behalf. He stated that he had been sexually 

abused as a child by a female, described life in his childhood home as “like a war” 

with “constant yelling and screaming,” and said that he joined the Marines to 

“escape.” He concluded by apologizing for his crimes. 

{¶ 193} Sowell contends that the following mitigating factors exist. 

{¶ 194} (1) He is not dangerous while in a structured environment such as 

prison. Evidence in the record supports this factor, and we give it modest weight. 

See State v. Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, ¶ 303. 

{¶ 195} (2) “Those who have done worse have been allowed to live.” Here 

Sowell cites an assortment of notorious murderers from other jurisdictions who did 

not receive death sentences and contends that, since they were not sentenced to 

death, he should not be either. 

{¶ 196} We reject this argument. The crimes of others cited by Sowell are 

wholly unrelated to his character or record or the circumstances of his own crimes. 

Hence, those cases do not constitute mitigating factors. See State v. McGuire, 80 

Ohio St.3d 390, 403, 686 N.E.2d 1112 (1997) (rejecting residual doubt as 

mitigating factor because it is not related to offender’s character or record or the 
January Term, 2016 

53 

circumstances of the offense); State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 

892 N.E.2d 864, ¶ 124 (for the same reason, impact of offender’s execution on his 

family is not a mitigating factor). 

{¶ 197} (3) Sowell “tried to accept responsibility” by offering to plead 

guilty in exchange for a life sentence without the possibility of parole. As we note 

in our discussion of Sowell’s eighth proposition of law, Sowell’s plea offer is not a 

mitigating factor. Dixon, 101 Ohio St.3d 328, 2004-Ohio-1585, 805 N.E.2d 1042, 

at ¶ 69 (“a defendant’s offer to plead guilty, never accepted by the prosecutor, is 

not relevant to the issue of whether the defendant should be sentenced to death”). 

{¶ 198} (4) Sowell’s allegedly chaotic and abusive family background. 

This court has “ ‘seldom given decisive weight to’ a defendant’s unstable or 

troubled childhood.” State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920 

N.E.2d 104, ¶ 245, quoting Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 

864, at ¶ 265. It deserves nominal weight here. 

{¶ 199} (5) His work record and honorable military service. These “are 

entitled to some weight as mitigating factors.” State v. D’Ambrosio, 73 Ohio St.3d 

141, 146, 652 N.E.2d 710 (1995); see also Neyland, 139 Ohio St.3d 353, 2014-

Ohio-1914, 12 N.E.3d 1112, at ¶ 302. 

{¶ 200} (6) The murders in this case were not “planned and calculated,” as 

is allegedly shown by his supposedly impulsive assault on Shawn Morris. 

However, Sowell was convicted of committing these murders with prior calculation 

and design, and the record supports that finding. This factor, therefore, deserves 

no weight. 

{¶ 201} (7) His alleged OCD, psychosis, and other mental problems. In 

view of the conflicting expert testimony on this subject, we give it little weight. 

{¶ 202} The aggravating circumstances in this case are entitled to 

significant weight. The mitigating factors that are present, however, are entitled to 

modest, nominal, some, and little weight, respectively. We conclude that as to each 
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of the 11 murders in this case, the aggravating circumstances outweigh the 

mitigating factors beyond a reasonable doubt. 

{¶ 203} Finally, we also conclude that the death sentences in this case are 

appropriate and proportionate when compared with similar capital cases. See

Lundgren, 73 Ohio St.3d at 496, 653 N.E.2d 304; State v. Brown, 38 Ohio St.3d 

305, 321, 528 N.E.2d 523 (1988). 

{¶ 204} Accordingly, we affirm Sowell’s convictions and sentences of 

death. 

Judgment affirmed. 

PFEIFER, LANZINGER, KENNEDY, and FRENCH, JJ., concur. 

O’CONNOR, C.J., dissents, with an opinion. 

O’NEILL, J., dissents, with an opinion joined in part by O’CONNOR, C.J. 

_________________ 

O’CONNOR, C.J., dissenting.

{¶ 205} I join the dissenting opinion of Justice O’Neill to the extent that he 

would find structural error and remand this case to the trial court for a new 

suppression hearing that is either public or is closed after making the findings 

required by Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). 

I do not join the dissenting opinion, however, to the extent that it states that capital 

punishment is unconstitutional. 

_________________ 

O’NEILL, J., dissenting.

{¶ 206} Respectfully, I dissent. 

{¶ 207} In addition to my belief that capital punishment is unconstitutional, 

see State v. Wogenstahl, 134 Ohio St.3d 1437, 2013-Ohio-164, 981 N.E.2d 900, 

¶ 2 (O’Neill, J., dissenting), I dissent from the majority’s decision in this case that 

closure of the courtroom during Anthony Sowell’s suppression hearing was not a 

material error and that the error therefore can be ignored. 
January Term, 2016 

55 

{¶ 208} In cases such as this that involve unspeakable horror and 

overwhelming evidence of guilt, it is tempting to overlook procedural safeguards 

and skip to the end. However in a criminal-justice system governed by the rule of 

law, a serial murderer’s trial is subject to the same constitutional protections as the 

trial of a low-level thief. Just as there is no question that closed suppression 

hearings may sometimes be necessary, there is also no question that the necessity 

must be explained. The majority correctly identifies the issue and the law regarding 

the closure of Sowell’s suppression hearing. However, by failing to remand this 

case to the trial court for a new suppression hearing that is either public or is closed 

only after the findings required by Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 

81 L.Ed.2d 31 (1984) are made, this court has perpetuated rather than resolved a 

structural defect in this case. 

{¶ 209} A structural defect can invalidate the result of a suppression hearing 

or a conviction even though there may be no reasonable doubt that the defendant is 

guilty and would have been convicted if the defect had not been present. Waller at 

49; accord Arizona v. Fulminante, 499 U.S. 279, 309-310, 111 S.Ct. 1246, 113 

L.Ed.2d 302 (1991). Structural defects include violations of the right to counsel at 

trial, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); the 

right to an impartial judge, Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 

749 (1927); the prohibition of the unlawful exclusion of members of the 

defendant’s race from a grand jury, Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 

617, 88 L.Ed.2d 598 (1986); the right to self-representation at trial, McKaskle v. 

Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984); and the right to a 

public trial, Waller at 49, Fulminante at 310. The underlying principles are that 

“ ‘[w]ithout these basic protections, a criminal trial cannot reliably serve its 

function as a vehicle for determination of guilt or innocence’ ” and that the criminal 

punishment cannot “ ‘be regarded as fundamentally fair.’ ” Id., quoting Rose v. 

Clark, 478 U.S. 570, 577-578, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986). 
SUPREME COURT OF OHIO

56 

{¶ 210} The requirement of a public trial is for the benefit of the accused 

and the public. Waller at 46. It is so the public can see that the defendant is treated 

fairly and is not unjustly condemned. Id. I cannot stress strongly enough that the 

right to a fair, public trial belongs both to the accused and to the citizens of Ohio 

with equal value. They both need to have confidence in the ultimate outcome. It 

also serves to make those trying an accused keenly aware of their responsibility and 

of the importance of their task. Id. 

{¶ 211} In Waller, the Supreme Court of the United States held that the right 

to a public trial extends to suppression hearings. Id. at 46-47. The high court has 

been clear, however, that the right to an open suppression hearing may give way to 

other interests, such as the government’s interest in shielding disclosure of sensitive 

information or the defendant’s right to a fair trial. Id. at 45. In such circumstances, 

any closure of a suppression hearing over the objection of the defendant must be 

supported by trial-court findings that the closure is essential to preserve higher 

values and that the closure is narrowly tailored to serve an overriding interest. Id. 

Importantly the Supreme Court requires a trial court to articulate the interest at stake 

along with the findings specifically enough that a reviewing court can determine 

whether the closure order was properly entered. Id. If these findings were not 

made, the remedy is a new suppression hearing. Id. at 49-50. Here, as the majority 

observes, the trial court identified the overriding interest at stake—the sensitive 

nature of the evidence and potential prejudice to the jury pool. However, as the 

majority also observes, the trial court failed to make the findings required under 

Waller to justify closing the courtroom. 

{¶ 212} The majority’s conclusion that a new suppression hearing is needed 

only if it would result in a material change in the positions of the parties is incorrect. 

Reliance on State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150, 

¶ 87, to support this conclusion is misplaced at best. The closed proceeding in 

Bethel was not a suppression hearing regarding statements made to the police. The 
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57 

purpose of the closed hearing in Bethel was to explain to Bethel the consequences 

of his guilty plea. Id. at ¶ 86. Significantly, Bethel withdrew his guilty plea and 

opted to go to trial. Id.

{¶ 213} Requiring a defendant to show a material change in the positions of 

the parties in order to secure the defendant’s constitutional right to a public 

suppression hearing is the same as requiring a defendant to demonstrate prejudice. 

The United States Supreme Court’s holding in Waller is clear: the closure of a 

suppression hearing without making the findings justifying closure is structural 

error. Waller, 467 U.S. at 49, 104 S.Ct. 2210, 81 L.Ed.2d 31. The remedy for this 

structural error is a new suppression hearing. Id. at 49-50. If, after the new 

suppression hearing, there is no material change in the positions of the parties or 

the same evidence is suppressed, then a new trial is not in the public interest. Id. at 

50. It is only after the new suppression hearing is held that an examination of the 

positions of the parties becomes relevant or even possible. 

{¶ 214} The overwhelming evidence of Sowell’s guilt cannot cure this 

defect. A structural error permeates the proceeding such that the proceeding cannot 

“ ‘ “reliably serve its function as a vehicle for determination of guilt or innocence.” 

’ ” State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 17, 

quoting Fulminante, 499 U.S. at 310, 111 S.Ct. 1246, 113 L.Ed.2d 302, quoting 

Rose, 478 U.S. at 577-578, 106 S.Ct. 3101, 92 L.Ed.2d 460. This court simply 

cannot choose to ignore the rulings of the United States Supreme Court on this 

issue. Cooper v. Aaron, 358 U.S. 1, 17-18, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958); State 

v. Burnett, 93 Ohio St.3d 419, 422, 755 N.E.2d 857 (2001) (state courts must follow 

decisions of the United States Supreme Court on questions of federal constitutional 

law). Accordingly, this case should be remanded to the trial court for a new 

suppression hearing that either is public or includes trial-court findings justifying 

closure. 

{¶ 215} I dissent. 
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_________________ 

 Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and 

Christopher D. Schroeder and T. Allan Regas, Assistant Prosecuting Attorneys, for 

appellee. 

 Gamso, Helmick & Hoolahan and Jeffrey M. Gamso; and Robert L. Tobin, 

Cuyahoga County Public Defender, and Erika Cunliffe, Assistant Public Defender, 

for appellant. 

 Freda J. Levenson, urging reversal for amicus curiae, American Civil 

Liberties Union. 

_________________