After ordering a second sentencing hearing for a Cincinnati man convicted of murdering two teenaged girls and two women, the Ohio Supreme Court today affirmed the death sentence imposed for the slaying of the two teens.

A Supreme Court majority rejected Anthony Kirkland’s contention that the trial court improperly sentenced him to death rather than life in prison for murdering and burning the bodies of a 13-year-old and 14-year-old between 2006 and 2009. During the same period, Kirkland was also convicted of killing adults Mary Jo Newton and Kimya Rolison, for which he was sentenced to 70 years to life in prison.

Kirkland raised 11 issues with the trial court proceedings, known as propositions of law. Writing for the Court majority, Justice Judith L. French wrote that Kirkland “failed to identify any significant error; he was resentenced in a fundamentally fair proceeding.”

Chief Justice Maureen O’Connor and Justices Sharon L. Kennedy, Patrick F. Fischer, R. Patrick DeWine, and Melody J. Stewart joined Justice French’s decision. Justice Michael P. Donnelly concurred in judgment only.

Offender Argued for New Sentencing after Conviction
In 2010, a Hamilton County Common Pleas Court jury recommended the death penalty for the murder of the teens, and the trial judge imposed the death sentence as well as the life-in-prison sentence for the murder of Newton and Rolison. The Supreme Court affirmed the sentences in its 2014 State v. Kirkland decision.

After the decision, Kirkland sought a Court order in 2016 to reconsider he sentencing. The Supreme Court vacated the death sentences and remanded the case to the trial court for resentencing. In 2018, after conducting the resentencing proceedings, the jury recommended, and the trial court sentenced Kirkland to  death for the aggravated murder of the teens, identified in court records as Casonya C. and Esme K. Today’s decision is the outcome of Kirkland’s appeal of the second sentencing.

Police Connect Murders of Charred Bodies
In March 2009, Esme K. went jogging around the reservoir near her home. She was wearing a purple wristwatch and carrying an iPod with her name on it. Later that day, Esme’s mother reported her daughter missing and responding police saw Kirkland sitting under a tree with knives protruding from his pocket. When officers searched him, they found Esme’s purple watch and iPod.

Searchers then found Esme’s nude body in the woods and discovered her genitals, inner thighs, and left hand had been severely burned.

Kirkland told the police several inconsistent stories before admitting he choked her to death and set her on fire. He said he was attempting to find lighter fluid to completely burn her body before he fell asleep and then was arrested.

Police suspected Kirkland of similar murders and he was questioned further. About two hours after being questioned about Esme K., he confessed to murdering Casonya C. and Newton.

Casonya C. lived with her grandmother who reported her missing in May 2006. Her body was discovered under a pile of old tires near the end of a secluded road. Her body was heavily charred and decomposed. In June 2006, Newton’s smoldering remains were found about a half mile where Casonya’s body was found.

In a third interview, Kirkland confessed to killing Rolison, whose body was found in a wooded area near the end of a Cincinnati street. Rolison had been reported missing in October 2006 and her burned bones were discovered in June 2008.

Prosecutorial Misconduct Alleged
As part of his appeal, Kirkland contended that prosecutorial misconduct during closing arguments denied him of a fair trial. Justice French explained that when reviewing such a claim, the Court must first consider whether the prosecutor’s actions were improper, and if so, whether the conduct prejudicially affected Kirkland’s substantial rights. Citing the U.S. Supreme Court’s 1986 Darden v. Wainwright decision, the Court stated it must find whether the prosecutor’s comments “so infected the trial with unfairness as to make the resulting conviction a denial of due process.”

Kirkland faulted the prosecutor for speculating about Esme K.’s dying thoughts when he told the jury: “You know maybe earlier she would have said, please don’t hurt me. At this point, she probably is praying to God as the vomit filled her throat, please let me die.”

Kirkland’s attorney objected immediately to the comment. The trial court overruled the objection, but instructed the jury that the closing argument is not evidence , and told the jurors they must decide the case on the evidence.

The Court’s opinion stated that the trial court should have sustained the objection. The Court wrote that it has previously ruled it is improper for prosecutors to comment on what a victim was thinking when he or she died because it “invites the jury to speculate on facts not in evidence.” However, because the judge instructed the jury that comments made during closing arguments are not evidence, and gave a similar instruction before sending the jury to deliberate, the Court found the prosecutor’s statement did not deny Kirkland a fair trial.

Kirkland also claimed that during closing argument the prosecutor improperly “belittled” and “personally attacked” Dr. Joseph Wu, who testified on Kirkland’s behalf. Wu is a psychiatrist and professor at the University of California, Irvine. He is the author of published medical articles on the use of various brain scans to detect traumatic brain injury. He concluded that Kirkland suffered from a traumatic brain injury.

The prosecutor told the jury he has been prosecuting cases for 38 years and heard a lot of experts like Wu. The prosecutor stated, “I have never personally seen someone I would hold in less repute in an actual case than him.”

Kirkland’s attorney objected, and the prosecutor withdrew the comment. The Court’s opinion faulted the prosecutor, stating an attorney may not express his personal opinion as to the credibility of a witness, unless the opinion is based on evidence presented at the trial.

After withdrawing the comment, the prosecutor changed course and attacked Wu’s testimony. The change “diminished” the prejudicial effect of the comment, the Court stated.

The Court also rejected a claim that the prosecutor improperly “disparaged” Kirkland for not presenting evidence, other than his own claim that he was abused as a child. The opinion stated that when evaluating the prosecutor’s conduct in the context of the entire proceeding, the Court did not find Kirkland’s rights were violated.

Court Weighs Evidence
In addition to considering Kirkland’s argument, the Court independently reviewed whether the aggravating circumstances outweighed any mitigating factors, including Wu’s assessment of a brain injury that would not allow Kirkland to control his impulses. The Court noted the prosecution presented three doctors to rebut Wu’s testimony, and those doctors concluded that the brain scans did not indicate brain injury.

The Court noted that in its 2014 decision it found the death sentence was a proportionate penalty compared with others who were sentenced to death for similar crimes, and concluded the death penalty was appropriate. The Court stated today that “conclusion remains sound.”

2018-1265. State v. Kirkland, Slip Opinion No. 2020-Ohio-4079.

View oral argument video of this case.

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