Ohio Supreme Court Affirms Death Penalty for Akron Man

2006-1502. State v. Fry, Slip Opinion No. 2010-Ohio-1017.
Summit C.P. No. 2005-08-3007. Convictions and sentences affirmed, but cause remanded to the trial court for imposition of postrelease control.
Moyer, C.J., and Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Pfeifer, J., concurs separately.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-1017.pdf

(March 23, 2010) The Supreme Court of Ohio today upheld the convictions and death sentence of Clarence Fry of Akron for the aggravated murder of his estranged girlfriend Tamela Hardison in July 2005.

Hardison, who had filed assault and aggravated menacing charges against Fry, was stabbed to death five days after Fry was released on bond while she was babysitting for her grandchildren at her daughter’s home. One of the children, a five-year-old who was an eyewitness to the killing, testified at trial that Fry had entered the house carrying a large butcher knife and used it to fatally stab Hardison.

In today’s 7-0 decision, authored by Justice Judith Ann Lanzinger, the Court affirmed Fry’s convictions for aggravated murder and death penalty specifications. It also affirmed his convictions for several non-capital offenses including aggravated burglary, domestic violence, tampering with evidence, menacing by stalking and intimidation of a crime victim, but remanded to the trial court for the imposition of the appropriate term of postrelease control.

In rejecting all 20 allegations of trial court error raised by Fry as grounds to reverse his convictions or reduce his death sentence to a term of life imprisonment, the Court denied Fry’s claims that three counts in the grand jury indictment returned against him, including one death penalty specification, were defective for failure to state a required guilty mental state (mens rea).

Justice Lanzinger noted that in charging Fry with aggravated felony murder, the state’s indictment specified that Hardison was killed during the commission of the underlying crime of aggravated burglary, and also charged him with aggravated burglary in a separate count. Because the separate aggravated burglary count set forth the required guilty mental state for that crime, which is that the accused entered a premises “with a purpose” to commit a criminal offense, Justice Lanzinger held that the indictment sufficiently notified Fry that the state must prove he acted “purposefully.” Similarly, she wrote, the death penalty specification for felony murder in Fry’s indictment “does not set forth the mens rea because R.C. 2929.04(A)(7) does not include a mens rea component. Aggravated burglary was charged as the sole predicate offense in Specification One. As previously discussed, aggravated burglary was separately charged, and the indictment properly alleged the mens rea for this offense. Accordingly, there was no defect in this indictment because aggravated burglary contains the mens rea component for felony murder.”

The Court also rejected claims that the trial court violated Fry’s Sixth Amendment right to confront witnesses against him by admitting “hearsay” testimony in which a police officer, a nurse and a victim-assistance advocate testified at trial regarding statements made to them by Hardison after the July 18 domestic violence incident that caused her to file assault and aggravated menacing charges against Fry. Justice Lanzinger wrote that Hardison’s statements to a nurse at Akron City Hospital who treated her for injuries were non-testimonial in nature and therefore not barred by the hearsay rule because she had already given a full statement to the police, and an objective declarant could reasonably believe her statements to a nurse were solely for medical purposes and would not be repeated at trial.

With regard to testimony relating statements made by Hardison to a police officer who interviewed her at the scene of the July 18 domestic-violence incident, and to a victim-assistance advocate with whom she spoke later, the Court held that Hardison’s statements were testimonial in nature, but that Fry forfeited his constitutional right to directly confront the maker of those statements because Hardison’s unavailability to testify against him in person was a direct result of his own intentional action in stabbing her to death.

Justice Lanzinger wrote, “(T)he record demonstrates that Fry’s killing of Hardison was ‘designed’ to prevent her from testifying against him in any future criminal proceedings. While in jail and awaiting a court hearing on assault charges, Fry made several phone calls to Hardison and his mother about the case. He began coercing Hardison to drop the charges against him and threatening her if she did not. After Fry received the paperwork that Hardison had signed against him, Fry told her, ‘You don’t know me.’ He said, ‘I got two of them under my belt ... toe tags.’ He then told Hardison to ‘fix this, fix this.’ The jury also found Fry guilty of Specification Two of Count One for purposely killing Hardison to prevent her testimony in another criminal proceeding or killing her in retaliation for her testimony in any criminal proceeding under R.C. 2929.04(A)(8). Thus, the jury’s verdict supports the conclusion that Fry forfeited his right to confront Hardison’s statement to police. Based on the foregoing, Hardison’s statements to (the officer) were properly admitted.”

Among the other assignments of error, the Court also overruled Fry’s claim that his death sentence must be set aside because the trial judge filed the sentencing order in his case before allowing Fry to address the court. Justice Lanzinger wrote, “(T)he trial court here allowed Fry an opportunity to personally plead for his life at the sentencing hearing, and because Fry made a statement, the record is clear as to what he said. Having listened to Fry, the court had an opportunity to evaluate his statement and could have modified its sentencing entry if it had felt obliged to do so. However, the trial court chose not to modify the sentence ... While it is true that the court violated Crim.R. 32(A) by filing the sentencing entry pursuant to R.C. 2929.03(F) before the sentencing hearing, in accordance with (State v.) Reynolds(1998), and under the facts of this case, we hold the premature filing to be harmless error.”

Justice Lanzinger’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell and Robert R. Cupp.

Justice Paul E. Pfeifer entered a separate opinion concurring with the bulk of the majority’s opinion including its affirmance of a death sentence under the specification for the murder of a witness to prevent or retaliate for the victim’s testimony against the killer. He disagreed, however, with the majority’s affirmance of the felony-murder death penalty specification based on Fry’s conviction for aggravated burglary.

He wrote: “I conclude that the felony-murder death specification in this case is inappropriate. ... The felony here, which elevates an ordinary murder case to a death-eligible felony-murder case, is aggravated burglary. ... But under the facts in this case, the aggravated burglary, trespassing with the intent to commit a criminal offense, is implicit in the murder — it is not a separate crime. In essence, the murder is being counted twice, once as a murder and once as an aggravated burglary. The death-penalty scheme does not envision that every murder that involves a trespass will be a death-penalty case, though that is essentially what happens when aggravated burglary is chargeable. The expansive view that this court gives the felony-murder rule leads to death sentences in cases where the murder, however heinous, does not warrant death. ... Fry did not kill while committing a felony; the felony was incidental to the murder. Accordingly, I would reverse the R.C. 2909.04(A)(7) death specification.”

Contacts
Philip D. Bogdanoff, 330.643.2791, for the state and Summit County prosecutor’s office.

George C. Pappas, 330.535.6185, for Clarence Fry.

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