State of Ohio v. Terry L. Froman, Case no. 2017-0938
Warren County Common Pleas Court

Renee McConnell et al. v. Donald C. Dudley Jr. et al., Case no. 2018-0377
Seventh District Court of Appeals (Mahoning County)

David Ayers v. City of Cleveland et al., Case no. 2018-0852
Eighth District Court of Appeals (Cuyahoga County)

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Kentucky Man Argues against Death Sentence for Murder of Ex-Girlfriend

State of Ohio v. Terry L. Froman, Case no. 2017-0938
Warren County Common Pleas Court

Terry L. Froman was convicted in June 2017 for the murder of a Mayfield, Kentucky, woman who had ended their relationship. In September 2014, after receiving an alert to watch for Froman’s vehicle, law enforcement stopped him on Interstate 75 near Monroe, between Cincinnati and Dayton. The officers heard gunshots and found Kimberly Thomas dead in the vehicle and Froman injured from a self-inflicted gunshot wound. Thomas’ teenage son was found dead earlier in the day in Thomas’ Mayfield home, which she once shared with Froman.

Froman is challenging his death sentence and aspects of his trial in his automatic appeal to the Ohio Supreme Court.

Mayfield Woman Breaks Up with Live-In Boyfriend
On August 20, 2014, Thomas ended her four-year relationship with Froman. They lived together in her house, and she told him to move out. The next day, he showed up at the nursing home where Thomas worked, and he commented to one of her co-workers that he was going to make Thomas lose everything, as she had done to him. Her co-workers began escorting Thomas to and from work. Thomas finished moving out of the house on Labor Day weekend.

On Sept. 12, the Paducah Police Department in Kentucky received a call about an incident at a gas station involving a woman who exited a white SUV and asked for help, but a man dragged her by her hair back to the vehicle. The police distributed an alert for a white GMC Yukon with an Illinois license plate of “TRICKE 1.” The vehicle was registered to Froman. Concerned co-workers, who became suspicious when the police called asking for Thomas, went to her home and discovered her son Michael “Eli” Mohney dead.

When Ohio State Highway Patrol troopers approached Froman’s car on I-75, they found Thomas dead with four gunshot wounds, a fractured jaw, and several blunt-force injuries and lacerations.

Froman Indicted for Murder, Kidnapping, and Other Crimes
The charges made against Froman in the October 2014 indictment in Warren County included aggravated murder and kidnapping. The aggravated murder counts included specifications alleging that the offenses were part of a course of conduct involving Froman’s purposeful killing of two or more persons.

Following the June 2017 trial, a jury found Froman guilty on all counts and recommended the death penalty, which the trial court imposed. The Ohio Supreme Court will consider his appeal.

(As part of a plea agreement in Kentucky, Froman pled guilty last December to Mohney’s murder and other crimes, and he was sentenced to life in prison without parole.)

Froman Disputes Sentence Enhancement Based on Teen’s Murder in Kentucky
If the state proved beyond a reasonable doubt the specifications alleging that the offenses were part of a course of conduct involving Froman’s purposeful killing of two persons, Froman could receive the death penalty. Froman argues, however, that Ohio courts had no jurisdiction over these specifications because Eli’s murder occurred in Kentucky.

State law provides that a person can be prosecuted and punished in Ohio if “[t]he person commits an offense under the laws of this state, any element of which takes place in this state.” Eli’s murder didn’t occur in Ohio, nor did any element of that murder, Froman maintains.

His brief to the Supreme Court notes that he admitted committing Thomas’ murder in the trial’s opening statement and in his unsworn statement. However, he asserts that his case became a “trial within a trial” because most of the evidence presented was from Kentucky, including testimony from Thomas’ co-workers, her neighbor who heard gunshots on Sept. 12, officers who responded to the residence and to the 911 call from the gas station, as well as gruesome photos related to Eli’s murder.

This evidence made up a substantial portion of the trial, and its admission affected the trial’s fairness and any confidence in the trial’s outcome, he states. Because the trial court should’ve dismissed these specifications due to a lack of jurisdiction, the verdict must be reversed, according to Froman.

The “other acts” evidence about Eli’s murder also was impermissible bad character evidence, Froman argues. Its value was outweighed by the unfair prejudice to him of the jury hearing an emotional presentation of evidence about the Kentucky murder in order to elevate his sentence to the death in Ohio, he states. He believes his death penalty should be overturned.

State Could Use Kentucky Murder to Prove Specifications, Prosecutor Maintains
The Warren County Prosecutor’s Office points to several other Ohio convictions with course-of-conduct specifications related to murders in other states. The trial court had jurisdiction over the case of Thomas’ murder because her murder occurred in Ohio, the prosecutor notes.

Although Froman contests the trial court’s jurisdiction to consider the course-of-conduct specifications, the prosecutor contends that the sentence enhancements were proven by offering evidence that Froman went to Thomas’ house that morning, got her out of bed, shot Eli when he responded to his mother’s cries for help, put Thomas in his SUV, and drove north, eventually into Ohio. The prosecutor argues that Froman wasn’t tried in Ohio for Eli’s murder, and no separate criminal offense was charged in Ohio for the teen’s murder. Instead, these specifications were only a sentence enhancement, and weren’t subject to the state law governing when the state can prosecute a criminal offense in Ohio, the office states.

Even if the trial court had no jurisdiction on the course-of-conduct specifications, the court still had jurisdiction to hear the case on the aggravated murder charges, which also included kidnapping specifications that allowed for the death sentence, the prosecutor maintains.

The office adds that the jury was capable of not confusing the evidence related to Thomas’ murder from the evidence connected to Eli’s murder. Even without the course-of-conduct specifications, the prosecutor contends that proof of Forman’s guilt in Thomas’ murder was overwhelming.

The office notes that to prove the course-of-conduct specifications, it had to establish a factual link between Thomas’ murder and Eli’s murder. Based on a 1989 Ohio Supreme Court ruling, the prosecutor maintains that it’s irrelevant that the other acts – Eli’s murder – occurred outside Ohio. The events of that morning beginning in Kentucky were necessary to prove the specifications in the Ohio case, the prosecutor argues.   

Froman Raises Other Claims
Also among Froman’s 14 legal arguments to the Supreme Court, he asserts that the prosecutor denied him a fair trial by badgering an expert witness, referring to him as “Tricke,” and making other improper statements. The prosecutor counters that Froman’s friends called him by the nickname and that the other questions and statements weren’t inappropriate.

Froman’s brief raises additional issues about:

• juror bias
• shackling of Froman during the trial
• the lack of an expert witness report about video and audiotapes presented to the jury
• enhancements made those materials
• mitigating circumstances in Froman’s life that produced reasonable doubt.

Amicus Brief about Racial Bias Submitted
The Ohio Association of Criminal Defense Lawyers filed an amicus curiae brief supporting Froman’s assertion that a juror displayed racial bias in her questionnaire. The association notes that Froman is African American and Thomas was white. The juror indicated on her questionnaire that, statistically, more black people commit crimes. With such clear racial bias, the juror shouldn’t have been allowed on the jury and she tainted the verdict, the association contends, asking the Court to reverse Froman’s death sentence on this basis.

- Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing Terry L. Froman: Timothy McKenna, 513.381.7111

Representing the State of Ohio from the Warren County Prosecutor’s Office: Kirsten Brandt, 513.695.1782

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Was Township Entitled to Immunity for Police Cruiser Crash?

Renee McConnell et al. v. Donald C. Dudley Jr. et al., Case no. 2018-0377
Seventh District Court of Appeals (Mahoning County)

ISSUE: Do allegations of negligent hiring, or failure to train or supervise police officers, in relation to a motor vehicle accident involving a police cruiser, fall within any of the exceptions to a political subdivision’s immunity from liability?

BACKGROUND:
Before 8 a.m. on Sept. 18, 2013, officer Donald Dudley of the Coitsville Township Police was alerted to a suspected theft of an El Camino. Police dispatch stated that an individual was stealing the car and had hitched it to another vehicle. Witnesses gave Dudley information about the stolen car’s possible location. The officer said he found the El Camino hitched to a white sedan, and he turned on his overhead lights to stop the driver, who pulled over.

The officer pulled up and questioned the driver and the passenger, who said the El Camino belonged to them. Dudley called for backup, but no supervisor was available to assist him at that hour. Meanwhile, the pair exited the sedan and unhitched the El Camino. They returned to their vehicle and drove away. The officer pursued them and continued to radio for backup. He gained speed and activated his sirens and lights, reaching speeds of up to 76 mph in the residential neighborhood.

At one intersection, he slowed down and passed through it safely. As he approached another intersection, Dudley later stated, he saw the white sedan ahead of him and believed the intersection was clear. The traffic light was red, according to the dashboard camera in the officer’s cruiser. Renee McConnell of Hubbard was driving to work on the cross street. As Dudley entered the intersection, he collided with McConnell’s car, 99 seconds after the pursuit began. The cruiser veered off into a telephone pole, and McConnell’s car flipped upside down. A law enforcement report estimated that the cars’ speeds each were between 37 and 41 mph at the time of the crash.

McConnell suffered several neck and lower back fractures, 17 broken ribs, a detached retina, a collapsed lung, a significant head injury, and cuts. She experienced post-traumatic stress, anxiety, and panic attacks, and was unable to return to her job.

Injured Woman Sues Township Following Crash
In September 2015, McConnell, her husband, and four children filed a lawsuit in Mahoning County Common Pleas Court against Dudley, the Coitsville Township Police Department, and the Coitsville Township Board of Trustees. Coitsville and Dudley requested summary judgment in its favor based on the general immunity from civil lawsuits that state law gives to government bodies, such as townships and police departments. The trial court denied the motion in February 2017.

Coitsville and Dudley appealed to the Seventh District Court of Appeals. The Seventh District granted summary judgment to Dudley, reversing the trial court’s ruling and removing the officer from being held personally liable in this case. However, the appeals court agreed with the trial court that summary judgment for the township wasn’t appropriate.

The Ohio Supreme Court accepted Coitsville’s appeal on the issue of whether the township is immune from liability in this case.

Alleged Negligent Officer Hiring and Training Don’t Remove Immunity, Township Argues
Coitsville notes that, under R.C. 2744.02(B)(1), “political subdivisions are liable for injury, death, or loss to person or property caused by the negligent operation of any motor vehicle” by employees. In her initial complaint, McConnell argued that the township had a duty to hire qualified patrol officers, to have policies and procedures to guide officers in their duties, and to train officers on the policies and procedures. McConnell alleged that the township’s actions in its hiring or training of Dudley or in its policies were negligent, willful, or wanton.

The township maintains, however, that police officer hiring or training and department policies don’t qualify as the operation of a motor vehicle. The township points to the Ohio Supreme Court’s 2009 decision in Doe v. Marlington Local School District Board of Education. The Supreme Court stated that “the exception to immunity in R.C. 2744.02(B)(1) for the negligent operation of a motor vehicle pertains only to negligence in driving or otherwise causing the vehicle to be moved.” While the Seventh District ruled that an employee’s negligent operation of a motor vehicle includes claims of entrusting someone who is incompetent and failing to train, the township counters that, based on Doe, motor vehicle operation can’t include officer hiring, training, and policies.

Coitsville also argues that R.C. 2744.02(B)(1)’s removal of immunity is based on the employee’s, not the political subdivision's, conduct. Negligent training and hiring can’t be an independent basis for liability that removes immunity because it’s not an exception listed in the statute, the township states. And, any evidence of the township’s failure to train or supervise its officers is irrelevant to determining whether the officer’s conduct was willful or wanton under R.C. 2744.02(B)(1)(a), Coitsville maintains.

The township’s immunity can’t be stripped for its alleged negligence under R.C. 2744.02(B)(1) because that exception to immunity is based on an employee’s alleged negligence while operating a motor vehicle, Coitsville concludes. It asks the Supreme Court to overturn the Seventh District’s decision that the township could be liable for its actions in this incident.

Lack of Training Is Directly Connected to Accident, Injured Woman States
McConnell responds that she has established that the township’s negligent hiring and training of Dudley was causally related to the police cruiser’s operation that caused the crash. Doe asked whether a school district had immunity or could be held liable for a bus driver’s alleged negligent supervision of children when one child sexually molested another on the bus, McConnell notes. She maintains that Doe didn’t involve a motor vehicle accident, so Doe doesn’t apply. Dudley’s operation of his cruiser caused a serious auto accident that removes the township’s immunity under R.C. 2744.02(B)(1), she argues.

“[R]easonable jurors could conclude that [Dudley’s] failures are directly attributable to rash decisions that had been made by his superiors prior to the commencement of the emergency call, most notably the complete lack of any effort to ensure that the officers who were expected to engage in high speed pursuits were properly qualified, trained, and monitored so as to minimize the risk of injuries to themselves and others,” the brief to the Supreme Court states.

She maintains that government agencies act only through their employees, and Dudley’s superiors are all township employees just like Dudley. Their alleged contribution to the negligent operation of the cruiser falls within R.C. 2744.02(B)(1), McConnell asserts. The legislature's broad language removes immunity and imposes liability without needing to specify what the political subdivision’s duty is or what type of breach must occur, so the statute encompasses many causative factors, she argues.

“Evaluation and training for high speed pursuits protects not only the ordinary citizen, but also the officers who are expected to chase and apprehend dangerous criminals under difficult circumstances,” her brief notes.

McConnell adds that when immunity is lifted for negligent motor vehicle operation, a police department can then offer evidence in court that the vehicle was operated safely and that an officer was well-trained. Maintaining that the Seventh District created no new exception to government immunity with its decision, she suggests that the Court could dismiss the appeal as improvidently accepted. Otherwise, she asks the Court to uphold the Seventh District’s determination that the township’s immunity is removed in this case.

Cities and Organizations File Briefs on Each Side
An amicus curiae brief supporting Coitsville Township’s position has been submitted collectively by the following group of cities, villages, and organizations that represent political subdivisions and schools:

• Buckeye State Sheriff’s Association
• Cities of Akron, Athens, Barberton, Cincinnati, Cleveland Heights, Columbus, Galion, Oakwood, Urbana, Xenia, and Zanesville
• County Commissioners Association of Ohio
• Ohio Municipal Attorneys Association
• Ohio Municipal League
• Ohio School Boards Association
• Ohio Township Association
• Villages of Plain City and Chagrin Falls.

The cities of Alliance, Canton, and Massillon also filed an amicus brief in support of the township.

The Ohio Association of Justice submitted an amicus brief supporting McConnell’s position.

- Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing the Coitsville Township Police Department and the Coitsville Township Board of Trustees: Gregory Beck, 330.499.6000

Representing Renee McConnell et al.: Paul Flowers, 216.344.9393

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Can Winner of $13.2 Million Judgment against Cleveland Police Officers Collect from City?

David Ayers v. City of Cleveland et al., Case no. 2018-0852
Eighth District Court of Appeals (Cuyahoga County)

ISSUE: Under R.C. 2744.07(A)(2), can a judgment creditor directly sue a municipality for indemnity for the amount of money owed by a municipal employee if the employee doesn’t seek indemnity from the municipality to pay the judgment?

BACKGROUND:
David Ayers charges that the city of Cleveland with orchestrating a scheme to help two police officers declare bankruptcy in order to help the city avoid paying a $13.2 million judgment that Ayers won from the officers.

In 2000, Ayers, then a 43-year-old security guard, was charged and convicted of the murder of 76-year-old Dorothy Brown. Through a federal appeal, Ayers was found to be wrongfully convicted in 2010 based on constitutional violations committed by two investigating detectives, Michael Cipo and Denise Kovach. The state didn’t retry him and he was released in 2011.

In 2012, Ayers filed a federal civil rights lawsuit seeking compensation from the officers and the city. Separately, he brought an indemnity claim against the city, citing a state law that requires political subdivisions, such as Cleveland, to pay certain court judgments sustained by their employees. The Cleveland City Law Director’s Office took control of the case for both the city and the officers. The federal court dismissed all the claims against Cleveland, citing its statutory immunity granted by the legislature. A jury found the detectives violated Ayers constitutional rights and awarded him $13.2 million in damages.

Under R.C. 2744.07(A)(2), the city was obligated to indemnify the detectives and pay the judgment against them, if the employees sought indemnification. Rather than asking the city to pay the debt, the city hired a bankruptcy attorney to assist Kovach in filing for bankruptcy to protect her assets against Ayers, who became a judgment creditor. Cipo died shortly after the trial, and Ayers didn’t pursue the judgment against his estate. Kovach had little to no debt other than the judgment when the bankruptcy court accepted her request. The court then discharged the $13.2 million judgment against Kovach, who had by then retired from the force, relieving her any obligation to pay.

Kovach didn’t request indemnification during the bankruptcy proceedings nor did she agree to receive free assistance offered by Ayers’ attorney to avoid bankruptcy by filing for indemnity with the city. Ayers then sought to enforce the indemnity obligation the city owed to Kovach. The federal court determined it was a state matter and directed Ayers to state court.

Man Sues City to Collect Judgment
Ayers filed a lawsuit in Cuyahoga County Common Pleas Court seeking indemnification as well as attempting to obtain payment by making other legal challenges against the city. The trial court agreed to split the case into two issues, first addressing the right of Ayers to pursue the indemnification claim, leaving the other legal theories for a later date. In October 2016, the trial court sided with Ayers on the indemnification claim, and the city appealed to the Eighth District Court of Appeals.

In November 2017, the Eighth District reversed the trial court, ruling that only a municipal employee faced with a judgment against him or her can seek indemnification from a municipality and that judgment creditors had no right under the statute to force the city to indemnify Kovach. In a 2-1 decision, the Eighth District noted that Ayers could attempt to seek the $13.2 million through his other legal claims.

Ayers appealed to the Ohio Supreme Court, which agreed to hear the case.

Creditor Can Enforce Law, Man Argues
Ayers contends that both he and the city agree that the law creates a right for individuals to sue to seek indemnity from the city and that it isn’t the job of any government agency to enforce the law. The two sides dispute whether the General Assembly intended to limit the right to sue for indemnity to employees only or also to allow judgment creditors to enforce it. Ayers argues there is nothing in the law that limits a judgment creditor from enforcing the provision, and it makes logical sense to allow creditors to file claims. The intent of the law was to prevent public employees from having to pay damages when their actions, while acting within the scope of their employment, led to civil lawsuit judgments, Ayers explains. The law allows the employees to seek to have the employer pay the damages instead. Ayers notes this is not the same as suing the city directly by claiming the city is liable for the faults of its employees. The city has immunity from that type of claim except for certain circumstances, mostly dealing with employees not acting within the scope of their employment, he states.

Because the city represented the officers in the lawsuit, the city never claimed the officers weren’t acting in good faith, and that position obligated the city to indemnify them and pay the judgment if the officers requested it, Ayers notes. Instead, Ayers argues, the city orchestrated a scheme in which the city arranged to help the officers declare bankruptcy and put them off-limits to any requirement to pay the judgment. The city contended that any obligation it had to pay the judgment terminated when the bankruptcy court ended Kovach’s obligation to pay, he contends. Ayers notes the bankruptcy court subsequently reopened Kovach’s bankruptcy filing for the sole purpose of allowing Ayers to seek indemnification from her should the Supreme Court rule that the city has to pay.

Ayers notes that while his case was pending, another Cleveland police officer also lost a large civil judgment, and the city requested the officer seek bankruptcy instead of indemnification. The attorney for the officer, once learning about Ayers’ litigation, declined to file the bankruptcy case, Ayers states. Ayers asserts that it appears that at this time only Cleveland has attempted to use bankruptcy by employees to avoid indemnification against large judgments, but warned that other political subdivisions could copy the plan, which would lead to citizens injured by government employees from recovering damages by filing bankruptcy.

Law Clearly Limited to Employees, City Argues
Cleveland argues the Eighth District correctly found the law clearly limits the right to seek indemnification to employees and that third parties, such as judgment creditors, can’t make the claim. The law is intended to protect municipal employees against the financial consequences of losing a civil lawsuit, and isn’t intended to create a means for creditors to collect judgments, the city asserts.

The city notes that the Connecticut Supreme Court reached the same conclusion in its 2003 St. George v. Gordon case dealing with a nearly identical statute as Ohio’s. The city argues that lower courts in Ohio have routinely denied judgment creditors from enforcing an employee’s right to seek indemnity. Cleveland maintains the provision is part of Ohio’s overall sovereign immunity scheme created by the General Assembly more than 25 years ago to protect local governments against most civil lawsuits while allowing for judgments against them in specified circumstances. The city notes lawmakers updating Chapter 2744 over the years have stated the intent of the indemnity statute is to protect the public employee and never indicated it intended to give others a right to sue when the employee doesn’t seek protection.

The city also notes that after the jury awarded Ayers the money, the city offered Ayers the right to have Kovach’s indemnity rights assigned to him as long as he didn’t continue to seek the money personally from Kovach. If he accepted the assignment, he could have “stood in Kovach’s shoes” and invoked the city’s right to pay the judgment, the city states. Ayers’ attorney rejected the offer, and notes that the assignment wouldn’t have stopped attempts by the city to fight paying the judgment.

Friend-of-the Court Briefs
An amicus curiae brief supporting the Cleveland’s positon was filed by the Ohio Prosecuting Attorneys Association. The Ohio Association of Civil Trial Attorneys also filed an amicus brief supporting the city.

An amicus brief filed jointly by seven Ohio law professors supports Ayers position, but mainly is focused on the actions of assistant city law director Joseph Scott and private attorney David Leneghan, whom Scott hired to help Kovach file for bankruptcy. The law professors charge Scott and Leneghan violated the Ohio Rules of Professional Conduct regarding conflicts of interest when arranging the bankruptcy filing.

- Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing David Ayers: Michele Berry, 513.919.5315

Representing City of Cleveland et al.: Robert Wolff, 216.696.7600

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