The Ohio Supreme Court today set aside the death sentence imposed on a man who shot and killed a Kent State University student during a robbery.

The Supreme Court upheld the convictions of Damantae Graham but found the death penalty in his case was inappropriate. In February 2016, Graham, then 19, and two 17-year-olds robbed a Kent man, also in his late teens, who sold drugs. The murder victim, Nicholas Massa, 18, was at the drug dealer’s apartment during the robbery.

Writing for the Court, Justice Patrick F. Fischer concluded that the aggravating circumstances of committing the murder during the robbery, burglary, and kidnappings did not outweigh the mitigating factors beyond a reasonable doubt.

“Massa’s tragic and senseless death was a result of a poorly thought out and horrifically executed robbery of a drug dealer by a group of teenagers,” Justice Fischer wrote. “Nevertheless, there is strong and compelling mitigating evidence regarding Graham’s history and background and other mitigating factors enumerated in [state law] that have significant weight.”

Chief Justice Maureen O’Connor and Justice Judith L. French joined Justice Fischer’s opinion. Justice Melody J. Stewart concurred in judgment only.

Justice Michael P. Donnelly concurred with a written opinion. He agreed with the majority opinion in full, but argued the Court should have completely addressed whether Graham’s sentence was proportionate to other penalties imposed in similar cases. Viewing the death sentence in this case as disproportionate and excessive, Justice Donnelly concluded that the sentence needed to be overturned regardless of the Court’s determination based on its review of the aggravating and mitigating circumstances.

Justice Sharon L. Kennedy concurred in the Court’s judgment in part and dissented in part. She agreed with the majority’s decision to affirm Graham’s convictions but wrote separately on the issue regarding the testimony from Massa’s father during the trial’s guilt phase. She also dissented from the Court’s decision to vacate Graham’s death sentence.

Justice R. Patrick DeWine joined parts of Justice Kennedy’s opinion.

Graham’s case was returned to the trial court for resentencing.

Former Classmate Decides to Rob His Drug Dealer
Connor Haithcock and Justin Lewandowski were roommates in a Kent apartment. Haithcock, who sold marijuana and a concentrated form of THC from the apartment, sold marijuana on two occasions to Ty Kremling, who had gone to high school with Haithcock. Kremling noticed that Haithcock had substantial cash and marijuana in the apartment.

Kremling rallied Graham and Marquis Grier to join him in a plan to rob Haithcock. Kremling asked a friend, Anton Planicka, 17, to drive them to Haithcock’s apartment to commit the robbery on Super Bowl Sunday, Feb. 7, 2016. Kremling, Graham, and Grier arrived at the apartment wearing bandanas and hoodies to conceal their faces. Graham and Grier were armed with semi-automatic handguns. When Lewandowski answered their knock on the door, Graham and Grier barged into the apartment, with handguns drawn, Kremling said.

They took the drugs from Haithcock’s lockbox, and Haithcock gave them all the money in his pockets – $500 or $600. Kremling and Grier took Haithcock to a bedroom to look for more money while, in the living room, Graham guarded Lewandowski and Massa, who was visiting that day.

Graham told Massa he would shoot Massa if he looked at Lewandowski again. Massa replied, “You’re not going to shoot me,” and Graham shot him in the chest. The others hurried into the living room, and the trio of robbers ran out of the apartment and fled. Massa died of his injury shortly after.

Kremling, Grier, and Planicka were soon arrested, and Graham was arrested a few days later.

Teen Shooter Faces Death Penalty
Graham was indicted for Massa’s murder, as well as for robbery, burglary, and kidnapping. The charges included death penalty and firearms specifications. Kremling, Grier, and Planicka testified at Graham’s trial.

The jury found Graham guilty of all charges and specifications. The jury recommended the death penalty, and the trial court agreed. The court also sentenced him to 61 years in prison on the noncapital offenses.

Because the death penalty was imposed, Graham is entitled to an automatic appeal to the Ohio Supreme Court.

Improper Admission of Certain Evidence
In its analysis of Graham’s legal arguments, the Court determined that some of Kremling’s testimony and photos of Graham and Kremling with guns should not have been allowed as evidence.

At trial, the Portage County prosecutor asked Kremling whether he knew Graham to carry a gun. The Court explained that this questioning was improper because it was meant to portray the defendant as someone who is violent and regularly carries guns. The prosecutor also introduced a photo of Graham, Kremling, and another person showing a smiling Graham holding two handguns. The Court stated the photo was presented to indicate that Graham has a propensity for gun violence.

In both instances, the evidence was improper, and its value was substantially outweighed by the danger of unfair prejudice to Graham, the Court found. The Court ruled, though, that the errors did not change the trial’s outcome given the other evidence of Graham’s guilt.

Guilt Phase of Trial Not Appropriate Time for Father’s Statements
The Court also ruled that the trial court should not have allowed testimony about Massa’s personal characteristics and the impact of the crimes on Massa’s family from his father during the guilt phase of the trial.

“[I]t is essential that we emphasize that the proper time for victim-impact evidence is at sentencing,” Justice Fischer wrote. “Victim-impact testimony is admissible during the guilt phase of the proceedings only when it is relevant to the commission of the offense and it is not overly emotional. When such evidence is improperly admitted in the guilt phase of the proceedings, it increases the likelihood that arbitrary factors will influence the jury’s decisions, which increases the possibility that a reversal will be required.”

The opinion stated that the detailed testimony from Massa’s grieving father was not relevant to the offenses. To determine whether a reversal was necessary, the Court evaluated whether the testimony was prejudicial to Graham — that is, whether the testimony was overly emotional in that it was “likely to inflame the passions of the jurors and elicit a purely emotional response” that would prevent the jurors from making a rational decision regarding Graham’s guilt and the appropriate punishment. Today, the Court presented “a nonexhaustive list of factors that may be used in making this determination.”

In “a close call,” the Court majority found Massa’s father’s testimony was not overly emotional.

“[T]he state elicited from Mr. Massa a detailed description of Nick’s life, how much Nick was loved and admired by his father, and the additional responsibilities placed on Mr. Massa as a result of Nick’s death. This testimony is impactful and leaves a lasting memory of the uniqueness of Nick Massa, but we cannot say that it inflamed the passions of the jurors, eliciting a purely emotional response that inhibited the jurors from making objective and rational decisions regarding Graham’s guilt or the appropriate punishment,” the opinion concluded.

Independent Evaluation Overturns Death Sentence
Because Graham was sentenced to death, the Court, as required by state law, independently reviewed his sentence and found that the aggravating circumstances of murdering Massa while committing robbery, burglary, and kidnapping did not outweigh the mitigating factors in his case.

The mitigating factors included Graham’s youth, which the Court gave significant weight, as well as his background, mental health problems, substance abuse issues, and other circumstances. The majority noted that Graham turned 19 the month before he committed the crimes with the other teenagers. His upbringing was troubled, and he received inadequate treatment for oppositional defiant disorder and conduct disorder, the opinion stated. Graham’s treatment for marijuana dependency was inadequate, according to the defense psychologist, who also stated that an addiction to Xanax caused Graham to become less inhibited and more aggressive.

Viewing the mitigating factors together, the Court determined that Graham’s death sentence was not appropriate and vacated it.

Concurrence Argues Court’s Proportionality Reviews Unfair
Justice Donnelly’s concurrence disputed the Court’s approach when reviewing the proportionality of death sentences.

The concurrence stated that the Court “has never once in the entire history of proportionality review reversed a death sentence on the ground that it was ‘excessive or disproportionate to the penalty imposed in similar cases,’ R.C. 2929.05(A).” Proportionality review in Ohio “fails both to comply with the plain language of R.C. 2929.05(A) and to ensure basic constitutional protections,” the concurrence maintained.

It noted that the Court’s opinions dispose of the statutory requirements of proportionality reviews by stating, typically in one sentence, that the death penalty was imposed in some other capital case with the same aggravating factors. However, Justice Donnelly argued, R.C. 2929.05 instructs the Court to consider similarly situated defendants who have received varying penalties, and it does not instruct the Court to consider varying defendants who have received identical death sentences.

He cited numerous recent cases involving a fatal shooting during a robbery where the state did not pursue the death penalty. “To impose capital punishment here, in light of the cases listed … would be arbitrary,” the opinion argued.

“I want to emphasize that I have no pity for Graham, and I do not wish to downplay the unspeakable tragedy that befell Nicholas Massa and all those who loved him,” the concurrence stated. “But the inquiry in a death-penalty proportionality review is not whether the murderer in the case should be punished but is instead whether the murder — among all other murders, which are also despicable and leave endless heartbreak in their wakes — is a murder for which the death penalty is appropriate. The death penalty must be reserved for only the worst among murder offenses.”  

Concurrence/Dissent Takes Issue with New Test and Death Sentence Analysis
In her opinion, Justice Kennedy maintained that the majority recasts Graham’s arguments and “loses its way” by issuing an advisory opinion on whether Massa’s father’s victim-impact testimony was overly emotional. Graham neither cited to nor directed the Court’s attention to the watershed cases regarding the admissibility of victim-impact testimony in a death penalty case, and the word “emotion” was used only in relation to his prosecutorial misconduct argument. The opinion asserted that the concerns related to addressing unbriefed issues were strong in this case. The novel test constructed by the majority will have wide application, yet it was not subjected to adversarial briefing, the opinion stated.

Justice Kennedy considered the arguments that had been advanced by Graham. While there was no evidence of prosecutorial misconduct, she agreed that the testimony from Massa’s father was not relevant to the circumstances surrounding the murder and that the trial court should not have permitted it during the trial’s guilt phase. However, the error did not prejudice Graham because “the remaining properly admitted evidence established Graham’s guilt beyond a reasonable doubt,” the opinion noted.

Justice Kennedy also maintained there was no prejudicial carryover effect from the erroneous admission of the testimony in the guilt phase to the penalty phase. The penalty-phase jury instructions excluded Massa’s father’s testimony from consideration by the jury and instructed the jury that it “must not be influenced by any consideration of sympathy or prejudice.” She stated that if there was any error during the penalty phase regarding the testimony, Graham invited the error when his counsel discussed it during opening statements and mentioned the Massa family in closing statements.

The opinion also contested the majority’s decision to overturn the jury’s verdict and the trial court’s sentence of death, concluding that “[t]his court has never overturned a death sentence in a case with so little mitigation.” The opinion maintained that the majority, without any substantive analysis, dismissed analogous cases in which the Court had upheld the death penalty.

“Graham’s mitigation offers nothing that weighs more heavily against the aggravating circumstance of his offense than was offered in” those cases, the opinion noted.

Justice Kennedy also challenged the precedent that the majority found supported the determination that the death sentence was not appropriate. She stated: “The majority merely offers a comparison of categories of mitigation, failing to discuss the substance of the mitigation offered by each defendant. However, it is the substance that matters.”

“When the mitigation factors that are supported by credible evidence are considered, and when the evidence is not distorted and is regarded in the context of our precedent, the obvious conclusion is that the aggravating circumstances outweigh the mitigating factors in this case,” the opinion stated.

“The analysis offered by the majority in finding otherwise is not persuasive,” the opinion continued. “This is a watershed case, and in all future death penalty cases, we will be required to follow it with regard to the weight of mitigating factors. If the majority wishes to change how this court weighs aggravating circumstances and mitigating factors in death-penalty cases, then it should have the courage to say that that is what it is doing, instead of insisting that it is merely following precedent.”

Justice Kennedy then examined whether Graham’s sentence was proportional. She maintained that the Court’s precedents, which have not been abrogated by the legislature, limit proportionality review to a comparison of only convictions of a capital crime. Comparing noncapital cases was unrealistic as “there may be numerous considerations that affect the prosecutor’s charging decisions, many of which will not be apparent from an appellate court’s opinion or even from the record. Considerations might include the prosecutor’s evaluation of the evidence and witness credibility, the existence of direct evidence of guilt, and the relative culpability of the accused and the existence of mitigation factors that might weigh against seeking the death penalty,” the opinion stated. She concluded that the death sentence imposed in this case was not disproportionate to sentences imposed in similar cases.

2016-1882. State v. Graham, Slip Opinion No. 2020-Ohio-6700.

View oral argument video of this case.

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