The Ohio Supreme Court today affirmed the 11 aggravated murder convictions and death penalty sentences of Anthony Sowell for the serial killing of 11 women in Cleveland.

In a 5-2 decision, the Court voted to uphold the 2011 convictions of Sowell, who was sentenced to death for the aggravated murder of 11 women whose bodies or body parts were found buried or concealed at his Imperial Avenue home. A principal issue in the case concerned whether the trial court committed reversible error in conducting an in camera hearing regarding statements Sowell made in a series of police interrogations and closing the voir dire of jurors in the case.

In an opinion authored by Justice Terrence O’Donnell, the Court concluded that the trial court failed to journalize all of the findings necessary to close the proceedings, but that failure did not mandate a new suppression hearing in this instance or a new trial.

“Although Sowell’s statements to police are incriminating, the state presented overwhelming independent evidence of guilt supporting Sowell’s convictions and sentence,” he wrote.

In a dissenting opinion, Justice William M. O’Neill wrote the trial court failed to follow the procedural step of explaining the necessity for closing the suppression hearing, and maintained that Sowell is entitled to a new hearing that is either open to the public or closed only after a trial judge explains the reasoning for closing it.

Rape Investigation Leads to Victims
While investigating a 2009 rape complaint against Sowell, Cleveland police obtained warrants to arrest him and search his house. Although Sowell was not at home, they nonetheless executed the search warrant and found the bodies of Diane Turner and Telacia Fortson in Sowell’s home and as a result obtained additional warrants to search the property with the help of the county coroner’s office. They then located the bodies of Janice Webb, Nancy Cobbs, Tishana Culver, and Tonia Carmichael.

The following day, they located Sowell and arrested him. They continued the investigation at the home and with the use of a backhoe uncovered the bodies of Michelle Mason, Kim Smith, Amelda Hunter, and Crystal Dozier, and found the skull of Leshanda Long in Sowell’s home.

Sowell Was Convicted on 81 Counts
A grand jury returned an 85-count indictment against Sowell with 66 counts related to the 11 murder victims. For each victim, the grand jury indicted Sowell on two counts of aggravated murder - one for prior calculation and design, and the other for felony murder predicated on kidnapping. Each murder count had death-penalty specifications. The remaining 19 counts related to crimes against Latundra Billups, Shawn Morris, and Gladys Wade, each of whom survived an encounter with Sowell, and those counts included charges of attempted murder, rape, felonious assault, and aggravated robbery.

During the guilt phase of trial, defense counsel did not call any witnesses but submitted a number of exhibits into evidence. The trial court acquitted Sowell of three counts relating to the felony-murder and kidnapping of Long, and the jury returned verdicts finding Sowell guilty of all but one count of aggravated robbery. Prior to the penalty phase, the trial court merged the aggravated murder counts for sentencing purposes, and the state elected to proceed under R.C. 2903.01(A), murder with prior calculation and design. The jury recommended death sentences for all 11 murders, and the trial court accepted that recommendation and sentenced Sowell to death on each count.

Sowell appealed to the Ohio Supreme Court and presented 18 propositions of law and three supplemental propositions of law, including claims that the trial court improperly closed the courtroom during the suppression hearing and jury voir dire.

Courtroom Closures
The trial court conducted an in camera hearing in July 2010 on Sowell’s motion to suppress the statements he made to police. Additionally, the trial court closed the courtroom for a portion of the voir dire in connection with attitudes of jurors toward the death penalty, juror requests to be excused from service for hardship reasons, and the impact of pretrial publicity.

The Motion to Suppress
Sowell sought to suppress his statements to police claiming he was not properly advised of his Miranda rights. He claimed he did “not knowingly, intelligently, and voluntarily” waive his rights before answering questions because he was suffering from a psychotic disorder or mental illness.

The trial court determined that because of the sensitive nature of the mental health issue and concerns raised about the potential of prejudice to the jury pool, it would close the suppression hearing. Sowell’s attorneys objected for the record to the procedure. At the hearing, the state presented testimony from police officers and video recordings of Sowell’s interrogation.

Although in his statement Sowell never admitted to murdering the women and denied having any memory of killing them or concealing their bodies, he explained that he had encountered various women, mostly in the East Cleveland area, and from time to time would hear a “voice” telling him to rape the “bad” ones, who were doing drugs and soliciting on streets. He stated that he would black out and have dreams in which he hurt women by choking them. He described himself as “the punisher” and the women as “cons” who tried to “hustle” him out of money and drugs.

The trial court denied Sowell’s motion to suppress those statements, finding that Sowell had properly waived his Miranda rights and that his statements were neither coerced nor the result of a psychosis that interfered with his ability to make free and rational choices.

Justice O’Donnell explained that the Sixth Amendment right to a public trial extends to hearings on motions to suppress evidence. He noted that in Waller v. Georgia, the U.S. Supreme Court had held that a suppression hearing may be closed only if an “overriding interest” is likely to be prejudiced, and the closure may not be broader than necessary to protect the rights or interests raised. The trial court must consider reasonable alternatives to closing the proceedings, and it must “make findings adequate to support the closure.”

In Waller, the court ruled that if a hearing were improperly closed, the remedy would not automatically be a new trial but a new suppression hearing. A new trial would be granted only if the second public suppression hearing resulted in suppressing “material evidence” that was allowed in the first trial or “in some other material change in the positions of the parties.”

Justice O’Donnell noted the trial court identified the overriding interest in the closed hearing: preventing the release of Sowell’s statement to the public in order to ensure an unbiased jury. On this point, the majority concluded, “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,” he wrote.

Justice O’Donnell also noted that the trial court recognized the potential for publicity to prejudice Sowell’s right to a fair trial, but did not make an express finding that the closure of the proceeding was “no broader than necessary to protect the interest.” Nevertheless, Justice O’Donnell stated that it was apparent from the record that the closure was no broader than necessary and the trial judge specifically stated it would reopen the court to arguments on other pretrial matters.

Although the trial court also did not specifically state that it considered reasonable alternatives to conducting a closed hearing, Justice O’Donnell recognized that it was obvious the court had no reasonable alternative other than closing the proceedings to protect Sowell’s right to a fair 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 examine the admissibility of Sowell’s statements without also possibly exposing those statements and prejudicing potential jurors,” he wrote.

Accordingly, the majority concluded that the limited closure of the courtroom during the hearing was proper.

In analyzing Waller, Justice O’Donnell recognized that a new suppression hearing is necessary only if suppressing the evidence would result in a “material change” in the positions of the parties. In Waller, the case involved suppression of wiretap evidence, and had that evidence been suppressed, the government would have been unable to proceed. Here, the Court concluded, even if the trial court had suppressed Sowell’s statements to police, the case could have proceeded with other evidence without changing the outcome of the trial. He noted that police found the remains of 11 women on Sowell’s property, and the conditions of the bodies established a course of conduct in which Sowell had kidnapped the women, sexually assaulted them, and strangled them to death.

Justice O’Donnell also noted that five of Sowell’s victims survived and testified at trial, providing evidence of his course of conduct. The majority concluded that ordering a new suppression hearing would be a “vain act” that would not change the outcome of the trial.

Closure of Part of the Voir Dire
Justice O’Donnell noted that although Sowell objected to the in camera examination of the prospective jurors in connection with their attitudes toward the death penalty, their requests to be excused from jury service, and the impact of pretrial publicity, this was done at the request of defense counsel and therefore constitutes invited error, which cannot form the basis of reversible error.

Court Reviews Circumstances of Crimes
Justice O’Donnell explained that a death sentence can be affirmed only if the Court finds beyond a reasonable doubt that the aggravating circumstances of the crimes Sowell was found guilty of committing outweigh any mitigating factors.

The jury found Sowell guilty of 13 course-of-conduct specifications for each victim, and with respect to ten of the aggravated murders, the jury also found him guilty of two felony-murder specifications: one predicated on kidnapping with the purpose to terrorize or inflict serious harm to the victim and another predicated on kidnapping with the purpose of engaging in sexual activity with the victim against the victim’s will. And the jury found that Sowell was either the principal offender or had acted with prior calculation and design. The trial court merged the course-of-conduct specifications into a single one for each aggravated murder and merged the two kidnapping specifications into a single one for each of the ten aggravated murders to which they applied. Justice O’Donnell wrote that the overwhelming evidence at trial supported the jury’s findings that these aggravating circumstances existed.

Regarding mitigation, Justice O’Donnell noted that in connection with Sowell’s history, background, and character, he was raised by his mother, who lived with his grandmother and his two siblings. After his sister’s death, Sowell’s mother took in seven of her children. Three of these children testified they had been subjected to regular abuse by Sowell’s mother and that Sowell observed the beatings and sometimes laughed about it. Sowell’s mother told an investigator that she once beat Sowell with a cord.

Sowell told the investigator he was sexually molested as a child, and one of Sowell’s nieces testified Sowell sexually molested her almost every day when she and Sowell were 10 and 11 years old, respectively.

Sowell served as an active duty U.S. Marine from 1978 to 1985 and was awarded two good conduct medals and was successively promoted from private first class to sergeant. Justice O’Donnell noted that Sowell had a prior criminal record consisting of a conviction for attempted rape in 1990 and that he served 15 years in prison. While serving time at Grafton Correctional Institution, he worked as a food handler, and after his release, he entered a job-readiness program for ex-offenders. He then began working at a rubber products company. In 2007, Sowell suffered a heart attack and returned to work after his hospitalization, but he was unable to perform and left that employment.

Regarding the mitigating factor relating to the existence of any mental disease or defect, the record contains evidence that Sowell was evaluated by four mental health experts who assessed his mental state and whether his heart attack contributed to any mental problems. While the doctors filed conflicting reports about his mental condition, Justice O’Donnell noted that a 2005 Cuyahoga County Court Psychiatric Clinic report showed an absence of significant psychiatric illness, and that no antipsychotic medications had been prescribed for Sowell during his nearly two-year incarceration in the county jail between his arrest for the murders and his trial.

In his unsworn statement at trial, Sowell reiterated prior testimony on his behalf and apologized for his crimes.

Upon reviewing the mitigating factors, Justice O’Donnell stated that “as to each of the 11 murders in this case, the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt.”

Justices Paul E. Pfeifer, Judith Ann Lanzinger, Sharon L. Kennedy, and Judith L. French joined Justice O’Donnell’s opinion.

Dissent Would Order New Hearing
In his dissent, Justice O’Neill wrote that in cases involving “unspeakable horror and overwhelming evidence of guilt,” it is tempting to overlook procedural safeguards. He noted that while closed suppression hearings may sometimes be necessary, there is no question the necessity needs to be explained.

“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,” he wrote.

Justice O’Neill maintained the majority misinterpreted the Waller decision and that Sowell is entitled to a new suppression hearing. If, after the new hearing, the trial court determines that the parties’ positions will not materially change, then the trial court can rule that a new trial is not necessary.

“This court simply cannot choose to ignore the rulings of the United States Supreme Court on this issue,” he wrote.

In a separate opinion, Chief Justice Maureen O’Connor partially joined Justice O’Neill’s dissent. She wrote she agreed that Sowell is entitled to a new suppression hearing, but disagreed with Justice O’Neill’s position that the death penalty is unconstitutional.

2011-1921. State v. Sowell, Slip Opinion No. 2016-Ohio-8025.

View oral argument video of this case.

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