The Supreme Court of Ohio today upheld the aggravated murder conviction and death sentence of Phillip L. Jones of Akron for the 2007 rape and strangulation killing of Susan Yates in a Summit County cemetery.

The court’s 6-1 decision was written by Chief Justice Maureen O’Connor.

In the early morning hours of April 23, 2007, a jogger discovered a woman’s body lying face up in Mount Peace Cemetery in Summit County. The jogger ran to a nearby fast-food restaurant and called 911. Thereafter, police arrived and quickly determined that the woman, later identified as Susan Yates, was dead.

Yates’s name was not released to the media. The next day, the Akron Beacon Journal reported that an unnamed woman was found murdered in the cemetery. After hearing the media report, Jones told his wife, Delores Jones, that he killed the woman, “Susan,” who had been found in the cemetery.

Upset by the information,  Delores went to the house of a friend, Charletta Jeffries, and told Jeffries what Jones had said. Jeffries called police, and when Akron police detective Richard Morrison came to Jeffries’ home, Delores repeated her husband’s statements to the detective.

Jones was arrested. When police interrogated him he said only, “All I’m going to say about this is that it was an accident.”

Jones was charged with two counts of rape and one count of aggravated murder with the death penalty specification that Yates was murdered during the commission of rape.

At trial, Jones testified that he accidentally killed Yates while he and Yates were engaging in “rough” consensual sex.  Jones claimed that the fatal injuries occurred when he complied with Yates’ request to restrain her breathing during intercourse, and that while he had his hand around her neck he heard a “crack” after which Yates went limp and died.

During cross-examination, the state presented a life-size doll and told Jones to demonstrate how he strangled Yates as he had testified on direct examination, which Jones attempted to do. The state then called a medical examiner, Dr. George Sterbenz, who testified in rebuttal that the type, duration and force of the contact Jones claimed to have had with the victim’s neck was not consistent with Yates’s injuries.  Specifically, Dr. Sterbenz explained that Yates died from “violent squeezing force to the neck.”  And that “asphyxiation takes quite a number of minutes to occur, and after unconsciousness occurs, the pressure then needs to be maintained until death is accomplished.”  Dr. Sterbenz also explained that if Yates had gone limp and died immediately thereafter—as Jones claimed—one would expect to find some kind of injury to the spinal cord.  Dr. Sterbenz found no such injury.

Delores agreed to testify on behalf of the state.  Because Jones asserted his spousal privilege, the state was not permitted to elicit testimony from Delores about any communication between the couple during the marriage.  Therefore, she did not testify that Jones told her that he killed Yates.

But over defense objection, the state presented testimony by Jeffries and Detective Morrison in which each of them repeated Delores’s statements to them that Jones told her that he had killed the woman, Susan, who was found dead in the cemetery.

Finally, the state also introduced testimony by T.J., a woman who described to the jury details of a 1990 incident in which she was choked and sexually assaulted by Jones, for which Jones served 14 years in prison.

The jury returned guilty verdicts on all counts, including the death penalty specification. The jury recommended and the court imposed a sentence of death. In Jones’s appeal to the Supreme Court, his attorneys raised ten assignments of legal and procedural error by the trial court that they alleged were grounds to vacate his convictions or reduce his death sentence to a term of life imprisonment.

In today’s decision, a 6-1 majority of the court overruled all of those claimed errors with the exception of Jones’s objection to portions of the trial testimony by Detective Morrison, which the court found to be harmless error.

Chief Justice O’Connor wrote that the admission of Morrison’s testimony about Delores’s statements to him about Jones’s confession violated the Confrontation Clause.  The chief justice explained that Delores’s statements to the detective were testimonial because she made them in the context of a criminal investigation, and not during an ongoing police emergency. The chief justice wrote further, however, that the admission of Jeffries’s testimony about Delores’s statements to her did not violate the Confrontation Clause because an objective witness would not believe that statements made to a friend in an emotional state would be available for use at a trial.  And admission of the statements was not barred by hearsay rules because the statements were “excited utterances” that Delores made  to Jeffries shortly after her husband had confessed to killing Yates and while Delores was still “hysterical and  hyperventilating” from hearing the information.

Chief Justice O’Connor wrote: “We hold that the erroneous admission of Morrison’s testimony relaying Delores’s out-of-court statements was harmless beyond a reasonable doubt in view of the remaining evidence establishing Jones’s guilt. ... Properly admitted evidence establishing Jones’s guilt beyond a reasonable doubt includes expert testimony that Jones’s DNA was found on vaginal swabs obtained from the victim and a stain found on the inside of Yates’s skirt.  The police also recovered a cross from Jones’s home that was similar to the cross found over Yates’s eye.  Delores’s excited utterance to Jeffries provided further evidence linking Jones to Yates’s murder.  Moreover, Jones admitted that he killed Yates when he testified on his own behalf.”  Based on that evidence, the testimony of T.J. about Jones’s 1990 assault on her, and Dr. Sterbenz’s testimony that Yates’s injuries could not have been inflicted accidentally, the court concluded that the improper admission of Morrison’s testimony was harmless error and therefore not grounds for a new trial.

The court also rejected Jones’s claim that his fair trial rights were violated when the prosecutor asked him to use a life-sized doll and demonstrate how he accidentally killed Yates, as he had described on direct examination. The majority noted that Jones had not objected to performing the demonstration. Moreover, nothing in the transcript indicates Jones was required to simulate having sex with the doll, as Jones claimed, or to do anything other than briefly demonstrate how he claimed to have accidentally caused Yates’s fatal neck injuries.

The majority held that the demonstration was relevant to impeach Jones. The chief justice explained that, when a defendant testifies in his own behalf, he “subjects himself to the same rules, and may be called on to submit to the same tests as to his credibility as may legally be applied to other witnesses.”

She wrote: “Jones’s demonstration showed how he placed his hands around Yates’s neck, as he had described on direct examination.  ...  (T)he prosecutor and Dr. Sterbenz used the doll during Dr. Sterbenz’s rebuttal testimony to clarify Jones’s explanation about what happened with Yates.  In turn, Dr. Sterbenz used autopsy photographs to explain that it was physically impossible for Jones to have killed Yates in the manner that he had demonstrated. ... To further explain, Dr. Sterbenz testified that Yates died from strangulation relating to neck compression, which restricts the blood flow and which would have had to have been maintained for some time after Yates became unconscious.  In sum, Dr. Sterbenz found all Jones’s explanation of the strangulation to be inconsistent with the autopsy.”

“Jones’s demonstration directly aided the jury in understanding, and thus assessing, the credibility of his version of events. Likewise, use of the demonstrative doll during rebuttal aided the medical examiner’s understanding of Jones’s explanation of the critical events and his ability to scientifically assess Jones’s story.  In turn, the jury was aided by Dr. Sterbenz’s opinion. We readily conclude that the demonstrative evidence was relevant to Jones’s claim that he accidentally killed Yates.”

The court also rejected Jones’s allegation that he was unfairly prejudiced when the trial court allowed the jury to hear “other acts” testimony by T.J. about Jones’s sexual assault on her that took place 17 years before the events resulting in Yates’ death.

Chief Justice O’Connor wrote that other acts evidence is admissible when it is offered not as proof of a defendant’s bad character or propensity to commit crimes, but as “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”  In this case, she wrote, “T.J.’s testimony was admissible to prove lack of mistake or accident.  Jones told police after he was arrested, ‘[A]ll I’m going to say about this is that it was an accident.’  Thus, T.J.’s testimony was material because Jones claimed that he accidentally killed Yates, and the testimony was therefore properly offered by the state in its case-in-chief to prove absence of accident.”

The chief justice noted that T.J.’s testimony established similarities in the details of the 1990 and 2007 incidents, i.e., that Jones transported both women, whom he barely knew, to remote locations and then beat, choked and sexually assaulted them.  She also pointed out that “T.J.’s testimony also helped to establish Jones's motive for murdering Yates to escape detection or apprehension.  ... After being raped and released, T.J. immediately notified police that Jones had raped her; he was convicted and was then incarcerated for 14 years. T.J.’s testimony supports the state's argument that Jones killed Yates so that she could not notify the police that he had raped her.”

Chief Justice O’Connor’s opinion was joined by Justices Evelyn Lundberg Stratton, Terrence O’Donnell, Robert R. Cupp and Yvette McGee Brown. Justice Judith Ann Lanzinger concurred in judgment only.

Justice Paul E. Pfeifer dissented, indicating that he found merit in several of Jones’ assignments of error, and that based on those defects in the trial court’s proceedings he would remand the case for a new trial.

With regard to the court’s requirement that Jones demonstrate his conduct with Yates by laying on top of and choking  a life-size doll before the jury, Justice Pfeifer wrote that in his view the demonstration was merely “courtroom drama” because Dr. Sterbenz always intended to testify that there was no way Yates’ injuries could have been caused by the hands of a person lying on top of her, and did not use the doll to demonstrate his theory that Yates’ injuries were the result of being placed in a headlock or strangled with a ligature.  “Thus,” wrote Justice Pfeifer, “the demonstration on the doll forced on Jones by the state and then again staged by the prosecutor and by Dr. Sterbenz during rebuttal served no purpose other than to inflame the jury. It was not probative of anything.”

Justice Pfeifer wrote that in his view not only Detective Morrison’s testimony but also the testimony of Charletta Jeffries about Delores Jones’ statements to them constituted inadmissible hearsay that should have been excluded at trial, because the state’s only purpose in proffering that testimony was  to defeat Jones’ statutory privilege to bar trial testimony by his wife disclosing private communications between them.

Justice Pfeifer also disagreed with the majority’s conclusion that the “other acts” testimony of T.J. about Jones assault on her 17 years before Yates’ death was admissible as evidence establishing the identity of Jones as Yates’ attacker or refuting his claim that her death was an accident.  He wrote: “Proof of identity is a straw man. Jones readily admitted he caused the death of Susan Yates. Proof of absence of mistake or accident has little rational connection to Jones's 17-year-old attempted rape of T.J. ... The best and only evidence that Yates’s death was not accidental came from Dr. Sterbenz. Jones’s conviction for attempted rape was far more remote in time than this court has ever allowed as an Evid.R. 404(B) exception. ... The conclusion that the prosecutor tendered T.J.’s testimony for the purpose of proving Jones's bad character and criminal propensity is inescapable and violates Evid.R. 404(B).”

Justice Pfeifer concluded: “Out of the tens of thousands of serious criminal cases that Ohio judges and prosecutors handle each year, we review only a few. It is our responsibility to assure fairness by requiring judges to enforce the rules, statutes, and constitutional protections afforded every citizen accused of a crime. ...  Jones did not get a fair trial. It should be a do-over, without the doll, without any testimony about the privileged spousal conversations, and, most assuredly, without the prior-acts testimony. To affirm will embolden prosecutors to increasingly follow an aggressively edgy path to assure convictions and to encourage judges to be accommodative with little fear of reversal.”

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2008-0525. State v. Jones, Slip Opinion No. 2012-Ohio-5677.
Summit App. No. CR07 04 1294.  Judgment affirmed.
O’Connor, C.J., and Lundberg Stratton, O’Donnell, Cupp, and McGee Brown, JJ., concur.
Lanzinger, J., concurs in judgment only.
Pfeifer, J., dissents.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2012/2012-Ohio-5677.pdf

View oral argument video of this case.