The Ohio Supreme Court today reversed  the death sentence of a Lake County man accused of the 2010 rape and murder of a Mentor-on-the-Lake bartender.

The Supreme Court voted 4-3 to order a new trial for Joseph L. Thomas, who was convicted of the aggravated murder, kidnapping, and rape of Anne McSween.

McSween’s naked body was found about 150 feet from the bar where she was working on what would have been her 49th birthday. McSween had been strangled and stabbed to death. Although Thomas had frequently been seen carrying a blue pocketknife prior to that night, it was not recovered during the criminal investigation. At Thomas’ trial, prosecutors introduced five other knives Thomas owned, describing them as “full Rambo combat knives.”

Justice Terrence O’Donnell authored the court’s lead opinion, which concluded that the trial court committed plain error in admitting those five knives that prosecutors knew were not used in the crime and that there was a reasonable probability that this error affected the outcome of the trial.

“Therefore reversal is necessary to prevent a manifest miscarriage of justice,” he wrote.

Chief Justice Maureen O’Connor and Justice William M. O’Neill joined Justice O’Donnell’s opinion. Justice Judith L. French concurred in judgment only without a written opinion.

In a dissenting opinion, Justice Patrick F. Fischer wrote that although it was “a close question” of whether the trial committed an error by admitting the five knives, he concluded the knives did not have an “appreciable impact on the jury’s verdict,” and would affirm the trial court’s decision.

Justices Sharon L. Kennedy and R. Patrick DeWine joined the dissent.

McSween’s Murder a Mystery
On Thanksgiving Day, McSween was working at Mario’s Lakeway Lounge. Patrons Matthew Miller and Thomas played pool and Miller saw that Thomas wore a pocketknife clipped to his pants. Witnesses observed that Thomas was upset because his girlfriend, Linda Roncalli, was unable to meet him for Thanksgiving dinner. From her text messages, Thomas believed she had broken up with him. As the night progressed, Thomas asked McSween and another woman to dance with him, but they both declined. At closing time, McSween had to ask Thomas to leave the bar several times, but he remained until the bar owner got him to leave without incident. The bar owner left Mario’s at about 2:30 a.m., and McSween typically did not return home on nights she closed the bar until 4:00 a.m.

Between 3:50 a.m. and 4:30 a.m., a resident of house near the bar heard a woman scream and two others in a home adjacent to the bar’s parking heard thuds along the house wall and saw the front door beginning to open. After the door was shut and locked, an occupant saw a “guy with long hair” on the stoop. (Thomas did not have long hair at the time, and McSween’s hair was about shoulder length.) A Mentor-on-the-Lake patrolman conducted a routine check of the bar’s property at 4:30 a.m., shining a flash light along the building and on boats stored on an adjacent lot, but he did not see anything unusual except for a flat tire on a vehicle.

Shortly after 8:40 a.m., the owner of a neighboring business discovered McSween’s body, naked except for pair of socks, in a wooded lot about 150 feet from the bar. Investigators found McSween’s car in the bar’s parking lot with a slashed tire, her left shoe wedged between a tire and the wheel well, and her keychain on the ground. There were small amounts of blood on the car. Near a piece of heavy equipment stored near the bar, they found McSween’s right shoe, her underwear, and a bracelet. On the ground were two large bloodstains, and a trail of blood leading toward the house where the residents heard the thuds. Investigators saw bloodstains on the windows, doors, and siding of the house and drag marks leading from the front stoop through a gravel driveway and into the grass toward the area where McSween’s body was found.

Investigators found three partial footprints near the car but did not recover any useful DNA or fingerprints, and all the blood recovered from the crime scene belonged to McSween.

Two other vehicles parked near the back of the bar had slashed tires. The cable, telephone, and thermostat lines near the rear roof of the bar had been cut, and the covers of two boats stored next to the bar parking lot had been cut open.

McSween Brutally Murdered
An autopsy performed by Dr. Daniel Galita revealed McSween died between 4:00 and 4:30 a.m. from blood loss caused by a stab wound to her neck. She had a fractured bone in her neck that was consistent with strangulation and at least five nonlethal cut wounds to the front of her neck. She had been punched in the face, which broke her upper jaw, nose, and dentures, and the bridge of her nose was cut with a knife. She had a fractured rib, and her brain hemorrhaged from her head hitting a hard surface. Scratches on her body were consistent with being dragged across a rough surface. She had been sexually assaulted, but no semen or sperm was found. The autopsy revealed she had defensive wounds on her hands and had been stabbed five times in the back after her death.

Galita concluded that the stab wounds were caused by a single-edged knife with a blunt edge 1/16th of an inch wide. While it was not possible to determine from the stab wounds the exact length of the knife used to kill McSween, Galita testified that a blunt edge 1/16th of an inch wide would be consistent with a four- to six-inch blade.

Thomas Known to Carry a Pocketknife
Roncalli, Thomas’s former girlfriend, described Thomas as often wearing a blue pocketknife clipped to his pants with a blade she thought to be three to four inches long.  She had last seen it in December 2010 or January 2011, before he lost it. Another former girlfriend said Thomas had carried a blue pocketknife when they dated four years before the murder. Matthew Miller, who played pool with Thomas the night of the murder, saw the top of a knife but did not describe it as blue or know its length.

Search Seeks a Match to DNA
Swabs from McSween’s body and personal items, including her underwear, were taken to the Lake County Crime Lab and the Ohio Bureau of Criminal Identification (BCI) for DNA testing. They found none of Thomas’ DNA. Small mixtures of DNA contained the partial profiles of other unknown males, but they did not belong to Thomas.

Weeks after the murder, police issued a press release seeking assistance in identifying a patron who had frequented the bar. Jackie Miller, who lived with Thomas at Susan Gorsha’s home along with her husband Tim, their son, 7-year-old Anthony, and another child, provided a tip identifying the patron as Thomas. On the morning of the killing, Thomas had told Jackie that there had been a murder at the bar and that he had been there that night.

Thomas voluntarily talked to police, acknowledged he was there, and described his 15-minute walk home from the bar. He said that he had arrived at Gorsha’s house around 2:15 a.m. and that Gorsha was asleep on the couch. He said he briefly talked with her, but she had no clear memory of that night and did not recall seeing Thomas.

Thomas told investigators that Anthony was awake when he got home and the two stayed up playing computer games until 5 a.m., Thomas using his laptop and Anthony using his father’s desktop computer. Forensic evidence showed activity on the desktop computer between 2 and 5 a.m., but there was no activity in that timeframe on Thomas’ laptop. Anthony remembered getting home about 2 a.m. and that Thomas returned within the hour. The two watched a movie together until he fell asleep, Anthony recalled.

Investigators Question Thomas
Thomas told investigators that he was not carrying a knife at the bar, did not fight with his girlfriend, and did not ask anyone to dance. He voluntarily submitted to a polygraph test conducted by BCI and was deemed to be telling the truth when he denied having anything to do with McSween’s death.

In April, five months after the murder when snow and ice had melted, investigators searched along the lakeshore for the rest of McSween’s clothing. While the search was unsuccessful, it led to a tip to question Robert Jenkins, who lived next door to the Gorsha house.

Jenkins recounted that on the morning after Thanksgiving he was awakened between 5 and 5:30 a.m. by a flash of light. He recalled seeing the silhouette of a tall, thin Caucasian man with short hair standing over a fire barrel behind Gorsha’s home. Thomas and Tim Miller both fit the description. Investigators received Gorsha’s consent to remove the burn barrel, and a detective noticed a strong odor of accelerant or lighter fluid in the barrel. It contained the burned remnants of a purse, clothing, and cosmetics belonging to McSween, and her DNA was found on her sweater and other items. Nothing belonging to Thomas, including clothing, fingerprints, blood, or DNA, was found in or on the barrel or on McSween’s items.

Officers obtained a warrant and searched the homes of Gorsha and Roncalli looking for items belonging to Thomas. They seized five of his knives but not the murder weapon. They did not find any of McSween’s property or any of her DNA on any of Thomas’s possessions. Further analysis of her DNA samples revealed two additional partial male DNA profiles. One profile would match one in every 10 males and one in every seven Caucasian males, while the other would match one in every 926 males and one in every 510 Caucasian males. The Lake County Crime Laboratory indicated it would only attribute DNA to a particular person when there is less than a 1 on 30 billion probability of a match.

Thomas Charged, Knives Introduced
Thomas was charged with 11 felony counts, including one count of aggravated murder committed with prior calculation and design and three counts of felony aggravated murder based on the commission of the murder in the course of committing kidnapping, rape, and aggravated robbery. Those four counts carried death penalty specifications. He was also charged with kidnapping, rape, aggravated robbery, and tampering with evidence. He pleaded not guilty.

At the trial, prosecutors introduced the five knives. The state dropped three of the capital specifications, and the jury found Thomas guilty of all counts and the remaining death-penalty specifications. The jury recommended the death sentence, and the trial court imposed that sentence. For the noncapital convictions, he received 33 years in prison. Thomas appealed to the Ohio Supreme Court, which is required to hear direct appeals of death sentences, and presented 24 propositions of law.

Admission of Knives Challenged
One of Thomas’ contentions was that the trial court committed plain error by admitting the five knives that were unrelated to the crime.

Justice O’Donnell explained that “plain error” is an obvious defect in the trial proceedings that affects the outcome of the trial. The opinion noted the burden of proof is on the accused to demonstrate that a plain error occurred and that there is “reasonable probability” the error resulted in prejudice.

Rules for Introducing Other Weapons Examined
The lead opinion examined Ohio Rule of Evidence 404(B) and R.C. 2945.59, which preclude evidence of unrelated crimes or other bad acts to prove the accused’s bad character or propensity to commit crime.

It noted that federal and Ohio courts have recognized the introduction of irrelevant evidence of weapons unrelated to a charge to be error. The lead opinion cited a 2009 Colorado Supreme Court decision that held that “the fact that a person collects knives does not tend to make it more probable that the person is experienced with the use of knives and intends to use a knife to cause serious injury to others.”

The Court also referenced the Ohio Tenth District Court of Appeals’ 2014 State v. Heyder decision, where the accused had challenged his conviction for robbing a store owner at knifepoint and the trial court had allowed evidence of a knife that was unrelated to the robbery. The Tenth District decided that the presentation of the knife was a prejudicial error because it could suggest to the jury that the accused was a dangerous person who carries a knife and could have used a different knife during the robbery.

“Here, as in Heyder, the trial court committed prejudicial error by admitting evidence of five knives that the state knew were not used in connection with McSween’s murder and that the prosecutor relied on to describe Thomas as an owner of ‘full Rambo combat knives’ with the intent to have the jury infer that Thomas is a dangerous person of violent character,” the opinion stated.

The Court cited three cases where it ruled that the erroneous admission of unrelated weapons evidence was harmless. It concluded that Thomas’ case was different because those others involved overwhelming independent evidence of guilt and his case does not.

“The state did not establish a motive for him to kill McSween—its suggestion that Thomas murdered her because he was upset with his girlfriend over her failure to show up for a Thanksgiving dinner and because McSween had declined his request to dance is not supported by ‘reason and experience,’” the Court wrote. “The state did not recover the murder weapon or obtain a confession, and Thomas had no significant criminal history.” The opinion further stated that no scientific or forensic evidence connected Thomas to the crime.

“[N]o blood, DNA, hair, semen, saliva, or fingerprints belonging to Thomas was found at the crime scene, on the victim’s belongings, or on or in the burn barrel, and there is no evidence that he had any visible scratches, swelling, or injuries immediately after the murder. Investigators did not find any of the victim’s belongings in his possession, nor was her blood or DNA found on his clothes or shoes. Jenkins did not identify Thomas as the person standing beside the burn barrel on the morning of the killing, and even if he had, the backyard was accessible to others and the state did not establish that the remnants of clothing and the purse had been there for five months. And the strong odor of accelerant detected when officers retrieved the items from the barrel has never been explained,” the opinion stated.

The Court concluded, similar to the Colorado Supreme Court, that possessing a knife collection has nothing to do with being able to handle knives and that the trial court erred by admitting the five knives because “the state offered this evidence to portray Thomas as a person of violent character who had acted in conformity with his propensity to kill—a use of evidence prohibited by Evid.R. 404(B) and R.C. 2945.59.” The case was remanded to Lake County Common Pleas Court for a new trial.

Dissent Finds Knives Didn’t Sway Jurors
In his dissent, Justice Fischer noted that prosecutors introduced the knives and told the jury it never found the blue knife people described Thomas of carrying. However, prosecutors added that when Thomas talked to investigators he denied owning the blue knife or any large knives, and he admitted to owning just one small red knife.

Justice Fischer explained evidence that makes the existence of a fact or consequence “more or less probable” can be introduced and in this case the testimony of the medical examiner about the size of the knife makes it probable the blue knife was the murder weapon. The fact that investigators found the other knives makes the argument that Thomas disposed of the blue knife more probable, he wrote.

“Based on these facts, it is not clear that Ohio law would have supported an effort by Thomas to exclude evidence of the five seized knives. I therefore do not join in the lead opinion’s determination that the trial court obviously erred in admitting the knife evidence,” the dissent stated.

The dissent also maintained that the Court has used a higher standard than “reasonable probability” to determine if an error affected the outcome, and the Court should have required Thomas to prove the error “clearly” affected the outcome.

The opinion stated that Thomas’ attorneys used the other knives to Thomas’ benefit by showing that none of them were used to kill McSween or used in any of the vandalism found at the crime scene. The opinion further highlighted that the same evidence deemed by the lead opinion to be prejudicial to Thomas was used by the defense as part of its strategy to show Thomas’ innocence, and concluded that the admission of that evidence was not “so clearly and highly prejudicial” as to constitute reversible error.

The dissent noted that the prosecution presented “substantial and compelling evidence” that supported the jury’s verdict, including that Thomas and McSween were present at the bar within two hours of the murder; Thomas was in possession of a knife that could have been used to stab McSween; and a man fitting Thomas’s description was seen standing by a fire barrel within hours of the murder.

“In light of this evidence, I would conclude that we cannot say that the evidence of the seized knives had any appreciable impact on the jury’s verdict. All of this evidence establishes Thomas’s guilt independent of the admitted knife evidence,” the dissent concluded.

2012-2026. State v. Thomas, Slip Opinion No. 2017-Ohio-8011.

View oral argument video of this case.

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