Office of the Ohio Public Defender Assistant State Public ... Perez was indicted by the Clark County...

IN THE SUPREME COURT OF OHIO

STATE OF 01110,

Appellee,

- vs -

KERRY SPEAKES PEREZ,

Appellant.

Case No. 2005-2364

Appeal taken from Clark CountyCourt of Common PleasCase No. 03CR1010

This is a death penalty case

MERIT BRIEF OF APPELLEE STATE OF OHIO

STEPHEN A. SCHUMAKER*(0014643)* Counsel of RecordClark County Prosecutor50 E. Columbia St.

Springfield, Ohio 45501(937) 521-1770Fax (937) 328-2657

COUNSEL FOR APPELLEE

FIEDJUN 2 5 2007

DAVID H. BODIKER

Ohio Public Defender

PAMELA PRUDE-SMITHERS *(0062206)* CounselofReeordROBERT LOWE (0072264)BRIE FRIEDMAN (0079414)Assistant State Public DefendersOffice of the Ohio Public Defender8 East Long Street, 11'h FloorColumbus, Ohio 43215614-466-5394

COUNSEL FOR APPELLANT

CLERK OF COURTSUPREME COURT OF OHIO

TABLE OF CONTENTS

TABLE OF CONTENTS .................................................................................................................i

TABLE OF AUTHORITIES .. .......................................................................................................iv

STATEMENT OF THE CASE .......................................................................................................1

Defense Seeks To Suppress Statements And Sever Charges ...............................................2

Perez Found Competent After Full Hearing .......................................................................5

References To Prison Escape Redacted .. ............................................................................5

Mitigation 7"heme Was Acceptance Of Responsibility And Expression of Remorse ...........5

STATEMENT OF THE FACTS .....................................................................................................7

ShootoutAt The Beverage Oasis .........................................................................................7

Murder At The Do Drop Inn ...............................................................................................9

Perez's Stepson Robert Smith Speaks Up .........................................................................10

Debra Smith Perez Cooperates With Police .....................................................................11

Perez Requested An Interview With Police And Eventually C'onfessed ............................ 12

Jury Never Learned That Perez Was A Violent Career Criminal WhoAlmost Escaped While Capital Charges Were Pending .................................................... 14

Other Bad Acts Excluded From Mitigation Deliberations ................................................ 16

LAW AND ARGUMENT ......... ...................................................................................................18

Response To Proposition Of Law No. 1: Where Perez's OtherRobberies Were Admitted As "Other Bad Acts", And Not As CrimesUnder The "Course Of Conduct" Capital Specification, Perez'sProposition Of Law I Is Founded On A False Factual Premise, AsWell As Being Non-Justicable Due To Waiver . .........................................................18

Response To Proposition Of Law No. 2: Evidence Of Other ArmedRobberies, Where Compliant Victims Were Not Hanned, ConstitutesProper 404(B) Evidence To Show "Motive, Intent, Purpose, Or Plan"For The Charged Crimes, Where Non-Compliant Victims WereHarmed ........................................................................................................................22

i

Response To Proposition Of Law No. 3: Where Debra Smith PerezElected In Open Court To Testify, And Perez Had No Expectation OfPrivacy In Jailhouse Communications With His Wife, Their TapedConversations Were Properly Admitted As Evidence Against Perez .........................25

Response To Proposition Of Law 4: Where Perez, Uncharged For TheCrimes In Question, Asked To Speak With Police, And Then WaivedHis Miranda Rights On Videotape, His Confession Was ProperlyAdmitted, Notwithstanding That Perez's Motivation Speak WithPolice Was A Misplaced Intention To Protect His Wife From CriminalCharges ........................................................................................................................ 28

Response To Proposition Of Law No. 5: Beyond The Claim BeingNon-Justicable Due To Waiver, The Confrontation Clause Of TheSixth Amendment Is Upheld Where Debra Smith Perez Testified InOpen Court And Was Subject To Cross-Examination About HerTaped Statements Earlier Admitted ............................................................................33

Response To Proposition Of Law 6: The Record Shows DefenseCounsel Effectively Represented Perez In Context Of Extensive AndConclusive Evidence Of Guilt, And In Their Success In Keeping TheJury From Leaming That Perez Was A Violent Career Criminal WithA Recent Escape Attempt ...........................................................................................34

Response To Proposition Of Law No. 7: Where Prospective JurorDirlam Insisted He Would Follow The Law Regarding CapitalSentencing, His Equivocation On Individual Mitigating Factors DidNot Render Him Challengeable For Cause, And Defense CounselWisely Exercised A Peremptory Challenge To Prevent Dirlam FromBeing Seated As A Juror .............................................................................................47

Response To Proposition Of Law No. 8: Beyond The Claim BeingNon-Justicable Due To Waiver, Wrongdoing On Collateral MattersDoes Not Mandate A Complicity Instruction, And The Other ActsInstruction Was Straight Out Of OJI And Properly ProhibitedConsideration On Factors Other Than "Motive, Intent, Purpose, OrPlan" ............................................................................................................................ 52

Response To Proposition Of Law No. 9: Capital Specifications OfFelony Murder And Course Of Conduct Do Not Merge, EspeciallyWhere The Course Of Conduct Crime and the Felony Murder CrimeWere Not The "Same Act............................................................................................ 54

Response To Proposition Of Law No. 10: Beyond Being Non-Justicable Due To Waiver, None Of The Aggrieved Conduct Is EvenArguably Improper ..................................:................................................................... 54

ii

Response To Proposition Of Law No. 11: Beyond The Claim BeingNon-Justicable Due To Waiver, Perez's Death Sentence Is NotArbitrary Simply Because Non-Triggerman Howard Received ADifferent Sentence For The Beverage Oasis Robbery And Debra SmithPerez Was Not Criminally Charged For Her Gun Transactions .................................59

Response To Proposition Of Law 12: Beyond Being Non-JusticableDue To Waiver, The Reasonable Doubt Instruction Was Straight OutOf OJI And Undoubtedly Proper ................................................................................60

Response To Proposition Of Law No. 13: This Court Has RepeatedlyHeld Ohio's Capital Sentencing Law Is Constitutional ..............................................60

CONCLUSION ............. ................................................................................................................61

CERTIFICATE OF SERV ICE ...................................................................................................... 61

iii

TABLE OF AUTHORITIES

CASES

Baze v Parker,371 F.3d 310 (6°' Cir. 2004) ................................................................................................38, 45

Crawford v. Washington,541 U.S. 36 (2004) ....................................................................................................................33

Greer v. United States,245 U.S. 559 (1918) .................................................................................................................. 35

Illinois v. Perkins,496 U.S. 292 (1990) ............................................................................................................29, 30

Smith v. Phillips,455 U.S. 209 ( 1982) .................................................................................................................. 55

State v. Braden,98 Ohio St.3d 354, 785 N.E.2d 439 (2003) .........................................................................37, 54

State v. Cooey,46 Ohio St. 3d 20 (1989) ...........................................................................................................35

State v. Crotts,104 Ohio St. 3d 432 (2004) .......................................................................................................22

Slate v. Cummings,332 N. C. 487 (1992) .................................................................................................................21

State v. Cunningham,105 Ohio St.3d 197, 824 N.E.2d 504 (2005) .................................................................37, 45, 51

Stale v. DePew,38 Ohio St. 3d 275 (1988) .........................................................................................................35

State v. Dixon,101 Ohio St.3d 328, 805 N.E.2d 1042 (2004) ...........................................................................38

State v. Finnerty,45 Ohio St. 3d 104 (1989) .........................................................................................................35

State v. Garner,74 Ohio St. 3d 49 (1995) ...........................................................................................................54

iv

State v. Gowdy,88 Ohio St. 3d 387 (2000) .........................................................................................................35

State v. Hessler,90 Ohio St.3d 108, (2000) .........................................................................................................54

Slate v. Howard,1999 Ohio 848 (3`d Dist. Ct. App. 1999) ...................................................................................43

Stale v. Hughbanks,99 Ohio St. 3d 365 (2003) .........................................................................................................35

State v. Jackson,107 Ohio St. 3d 53, 836 N.E.2d 1173 (2005) ............................................................................48

State v. Jenkins,15 Ohio St. 3d 164 (1984) .........................................................................................................54

State v. Lundgren,73 Ohio St. 3d 474 (1995) .........................................................................................................35

State v. Mack,73 Ohio St. 3d 502, 653 N.E.2d 329 (1995) .............................................................................48

State v. McNeill,83 Ohio St. 3d 438 (1998) .........................................................................................................35

State v. Miller,105 Ohio App. 3d 679 ( 1995) ...........................................................................................passim

State v. Murphy,91 Ohio St.3d 516, 747 N.E.3d 765 (2001) ...............................................................................37

State v. Newton,108 Ohio St. 3d 13, 840 N.E.2d 593 (2006) ..............................................................................45

State v. Noling,98 Ohio St.3d 44 (2002) ....................................................................................................54, 56

State v. Sapp,105 Ohio St. 3d 104 (2004) ...........................................................................................19, 20, 21

State v. Slagle,65 Ohio St.3d 597 (1992) ..........................................................................................................55

State v. Smith,14 Ohio St.3d 13 (1984) ............................................................................................................54

v

State v. Sneed,63 Ohio St.3d 3, 584 N.E.2d 1160 (1992) ................................................................................44

.State v. Spisak,36 Ohio St. 3d 80 (1988) ...........................................................................................................54

State v. Treesh,90 Ohio St. 3d 460 (2001) .........................................................................................................60

State v. Van Gundy,64 Ohio St. 3d 230 (1992) .........................................................................................................60

State v. Walker,66 Ohio App. 3d 518 (1990) ..............................................................................................passim

State v. Watson,61 Ohio St.3d 1, 572 N.E.2d 97 (1991) ....................................................................................37

State v. Williams,79 Ohio St. 3d 1,679 N.E.2d 646 (1997) ..................................................................................48

State v. Wogenstahl,75 Ohio St.3d 344 (1996) ..........................................................................................................55

State v. Woodard.r,6 Ohio St. 2d 14 (1966) ............................................................................................................56

Strickland v. Washington,466 U.S. 684 (1984) ...............................................:............................................................38, 42

United States v. Henry,447 U.S. 264 (1980) ..................................................................................................................30

United States v. Martinez-Salazar,528 U.S. 304 (2000) .................................................................................................................. 50

Uttecht v. Brown,U.S. -, 127 S.Ct. 2218 (2007) ................................................................................37, 48, 50

Wainwright v. Wilt,469 U.S. 412 (1985) ......................................................................................................48, 49, 50

STATUTES

ORC§2901.05(D) .............................. ............................................................................................60

ORC § 2923.03 ................................................................................................................................ 42

ORC§2929.04(A)(5) .......................... .....................................................................................18, 54

vi

ORC§2929.04(A)(7) .....................................................................................................................54

OTHER AUTHORITIES

Ohio Jury Instructions, Vol. 4, Section 402.61 .............................................................................23

Ohio Jury Instructions, Section 403.50 . ........................................................................................60

RULES

Evidence Rule 404(B) .....................................................................................................3, 4, 19, 22

vii

STATEMENT OF THE CASE

Perez was indicted by the Clark County Grand Jury on December 1, 2003, for

murder, attenipted murder, and gun robberies as follows: (See Indictment, Doc. 1).

Victim Date Charges

Ronald Johnson/Do Drop InnCounts 1-4

March 5, 2003 Agg. Murder [ORC 2903.01(B)]Firearm Specification [ORC 2941.141]Spec. 1: Felony/murder [ORC 2929.04(A)(7)](principal offender)Spec. 2: Course of Conduct [ORC 2929.04(A)(5)]Aggravated Robbery [ORC 2911.01 (A)(1)]Firearm Specification [ORC 2941.141]Tampering w/Evidence [ORC 2921.12(A)(1)]Weapons Under Disability [ORC 2923.13(A)(2)]

Clifford Conley June 22, 2002 Att. Murder [ORC 2923.02(A); ORC 2903.029B)]/Beverage Oasis Firearm Specification [ORC 2941.141 ]Counts 5-7 Aggravated Robbery [ORC 2911.01 (A)(1)]

Firearm Specification [ORC 2941.141]Weapons Under Disability [ORC 2923.13(A)(2)]

Nite Owl May 29, 2002 Aggravated Robbery [ORC 2911A1(A)(1)]Counts 8-9 Firearm Specification [ORC 2941.141]

Weapons Under Disability [ORC 2923.13(A)(2)]

Nite Owl Sept. 11, 2002 Aggravated Robbery [ORC 2911.01(A)(1)]Counts 16-17 Firearm Specification [ORC 2941.141]


19`h Hole June 7, 2002 Aggravated Robbery [ORC 2911.0](A)(1)]Counts 10-11 Firearm Specification [ORC 2941.1411


Sugarbaker's June 18, 2002 Aggravated Robbery [ORC 2911.01(A)(1)]Counts 12-13 Firearm Specification [ORC 2941.141]


1

Victim Date Charges

Lantern Bar Sept. 2, 2002 Aggravated Robbery [ORC 2911.01(A)(1)]Counts 14-15 Firearm Specification [ORC 2941.141]

Weapons Under Disability [ORC 2923.13(A)(2)](Offense date amended from 2003 to 2002)

Dragon China Jan. 19, 2003 Aggravated Robbery [ORC 2911.01 (A)(1)]Counts 18-19 Firearm Specification [ORC 2941.141]


Cassano's July 10, 2003 Aggravated Robbery [ORC 2911.01(A)(1)]Count 20 Firearm Specification [ORC 2941.141]

Defense Seeks To Suppress Statements And Sever Charges

In respect to Perez's motion to suppress his statements to police and his then wife,

Debra Smith Perez, Judge O'Neill conducted an evidentiary hearing on August 16-18,

2004. A second hearing regarding admissibility of Perez's statements to his then wife,

Debra Smith Perez, was conducted on July 5, 2005, by Judge McCracken, sitting by

assignment. The trial Court overruled the motions, such that Perez's statements to police,

and to his then wife Debra Smith Perez, were deemed admissible. See Motion To

Suppress Hearing, August 16-18 2004, Volumes I through 3; Motion To Suppress

I-Iearing July 5, 2005 (single volume). Document References: Doe. 50, Defendant

Motion To Suppress 05-19-04; Doc. 54 Defendant Second Motion To Suppress 08-13-04;

Doc. 91 Defendant Post-Hearing Brief In Support Of Suppression 11-08-04; Doc. 92,

State's Memorandum Contra Suppression 11-18-04; Doc. 93, Order Denying

Suppression 12-09-04; Doe. 94, Defendant Motion To Reconsider Order 12-28-04; Doc.

117, Order Denying Suppression 08-24-05; Doc. 122, Order Denying Suppression 08-26-

05; Trial Transcript Vol. 1, pgs. 50-61 (Judge McCracken noted that, due to the presence

2

of third parties, Perez did not have an expectation of privacy when conversing with his

wife.)

Several days before the start of the trial, Perez filed an intent to waive jury as to

all counts of the indictment except the Do Drop Inn murder (Ronald Johnson) and

robbery (Counts 1 and 2), and the Beverage Oasis attempted murder (Clifford Conley)

and robbery (Counts 5 and 6). See. Doc. 112, Perez Motion To Waive Jury, filed August

23, 2005; Doc. 113, Doc. 115, Jury Waivers, filed August 23 and 24, 2005.

Long before the trial started, Perez moved the Court to sever the Do Drop Inn and

Beverage Oasis crimes from the other indictment counts. In so moving, however, Perez

conceded that the Conley attempted murder/Beverage Oasis robbery fell within the

"course of conduct" specification to the Johnson murder (Do Drop Inn robbery). See

Doc. 88, Defendant Motion To Sever, filed August 12, 2004. Days before the trial started,

Perez moved for a second time to sever the Do Drop Inn and Beverage Oasis crimes from

the other indictment counts, this time being "in light of Defendant's jury waiver." Perez

also sought to exclude evidence of the other robberies, contending they were not

admissible "other bad acts" under Evidence Rule 404(B). See Doc. 120, Perez Second

Motion To Sever, filed August 26, 2005; Doc 125, Perez Motion to Exclude Other Bad

Acts Evidence, filed August 29, 2005.

The trial Court entertained oral argument regarding Perez's motion to sever

charges and exclusion of other bad acts evidence. Trial Transcript Vol. 1, pgs. 61-82. The

trial Court denied Perez's motions to sever. See Doc. 121, Order Denying Severance

August 26, 2005. After further argument, the trial Court sustained Perez's motion to

exclude evidence of the Cassano's robbery (Count 20 of the indictment), on grounds that

3

the Cassano's robbery (July 10, 2003) took place approximately four months after the

Do Drop Inn crime (March 5, 2003). Trial Transcript, Vol. 5, pgs. 766-771.

Later, the trial Court issued a written decision, concluding that the other robberies

were admissible as other bad acts evidence pursuant to Evidence Rule 404(B). See Doc.

128, Entry Regarding Other Bad Acts Evidence, filed September 7, 2005. Regarding the

Clifford Conley attempted murder/Beverage Oasis robbery, trial Court noted that Perez

conceded these crimes properly fell under the "course of conduct" specification to the

Johnson murder (Do Drop Inn). The trial Court wrote as follows:

The Defendant concedes, however, tltat the aggravated robbery andattempted murder which occurred on June 22, 2002, /CliffordConley/Beverage Oasis] are admissible by the State to prove the courseof conduct specification under the aggravated murder fRonaldJohnson/Do Drop InnJ which occurred on March 5/6, 2003. See State v.Sapp, 105 Ohio St. 3d 104 which would also reaeh this result. (Emphasisadded). Doc. 128, Entry Regarding Other Bad Acts Evidence, filedSeptember 7, 2005.

In that same decision, Doc 128, the trial Court set parameters for the admission of

evidence of the other robberies. Specifically the trial Court permitted the State "to make

limited reference to and to present limited testimony about each of the other armed

robberies leading up to this aggravated murder charge which is before the Court." The

trial court went on to exclude evidence on the Tampering With Evidence charge [Count

3] and the Weapons Under Disability charges [Counts 4, 7, 9, 11, 13, 15, 17 and 19]. See

Doc. 128, Entry Regarding Other Bad Acts Evidence, filed September 7, 2005.

In keeping with this decision, (Doc. 128, Entry Regarding Other Bad Acts

Evidence) the trial commenced and proceeded accordingly. In other words, the case was

tried on the Johnson murder (Count 1), the Do Drop Inn robbery (Count 2), the Conley

4

attempted murder (Count 5), and the Beverage Oasis robbery (Count 6). Evidence of the

robberies of the Nite Owl (May 29, 2002, and September 11, 2002), the 19th Hole,

Sugarbaker's, and the Lantern Bar were presented as "other bad acts" evidence pursuant

to Evidence Rule 404(B). (No evidence was presented regarding the Dragon China

robbery).

Perez Found CompetentAfter Fullllearing

About a week before the start of the trial, a competericy hearing was conducted at

the request of the State. Upon an exam and a report from Dr. Kidd, along with testimony

from Dr. Kidd, the trial Court found Perez competent to stand trial. See Trial Transcript

Vol. 1, pgs. 34-50; Joint Ex. 1(Dr. Kidd's file) Trial Transcript Vol. 1, pg. 90.

Referenees To Prison Escape Redacted

After completion of jury selection, Perez moved to redact from his recorded

statements references to his attempted prison escape. The trial Court granted the motion,

such that references to Perez's attempted prison escape would be redacted from his

recorded statements. See Trial Transcript, Vol. 5, pgs. 766-771.

The State presented its case. The defense rested without presentation of evidence.

See Trial Transcript, Vol. 9, pg. 1614. The jury returned guilty verdicts on all charges,

including the two capital specifications (felony murder and course of conduct). See Trial

Transcript, Vol. 9, pgs. 1701-1707 (verdicts).

Mitigation Tlzeme Was Acceptance Of ResponsibilityAnd Expression Of Remorse

The mitigation phase commenced with opening statements, where Perez argued

that evidence of mitigation (Perez's acceptance of responsibility and expression of

remorse for the victim) was already in the record. See Trial Transcript, Vol. 11, pgs.

5

1729-1731. Perez went on to present testimony from his stepfather Ray Paris, who

confined his testimony to Perez's background up to age 12. (Perez was 40 at the time of

trial, his date of birth being July 2, 1965). See Trial Transcript, Vol. 11, 1732-1739. Perez

did not testify.

During penalty deliberations, the jury had a question about the date of an other

bad act robbery (Sugarbaker's) and the date of Perez's confession to police. Upon

agreement of the parties, the trial Court, in written response, gave the date of the

confession to police, being November 12, 2003. Relative to the "date of Sugarbaker's",

the trial Court wrote: "For purposes of this phase of the trial, you may only consider the

aggravating circumstances that the Court has previously instructed you on. You may

not consider evidence of other acts." See Trial Transcript, Vol. 11, pgs. 1784-1785; see

also written jury question and trial Court's written answer, contained in Clerk's Trial

Exhibits Binder filed with this Court, page marked 1857. (Emphasis added).

The jury returned a death verdict, and affirmed the verdict during polling. See

Trial Transcript, Vol. 12, pages 1791-1796. The trial Court subsequently issued a

sentencing opinion, finding that the aggravating circumstances outweighed the mitigating

factors beyond a reasonable doubt, and imposed a sentence of death. Doc 144, 1'rial

Court Sentencing Opinion, filed December 9, 2005.

The case is now before this Court on initial appeal as of right.

6

STATEMENT OF THE FACTS

The city of Springfield was terrorized by a string of armed bar robberies from

May 2002 to March 2003. The method of operation was the same. Either one or two

masked men would enter near closing time. A gun would be brandished. The patrons

would be ordered to the floor and held at bay. Either the lone gumnan or the second

gunman would go straight for the cash register. The patrons would also bc robbed of cash

and jewelry. The robbery would be over quickly, in just a matter of minutes. As long as

the victims complied with the gunman's demands, no one would be hurt. When the

victims would not comply, the victims would suffer deadly force. See Appendix A, Trial

Transcript Summary, for detailed facts and transcript page references.

Shootout At The Beverage Oasis

Clifford Conley, the owner of the Beverage Oasis beer and wine drive thru/carry

out, was not compliant. As he watched a video monitor in his tiny office on June 22,

2002, Conley saw two masked gunmen rush for the cash register. As the gunmen rushed

in, Conley saw his employees rush out. Conley grabbed his 22 caliber semiautomatic

pistol from the desk drawer. As he went to confiront the gunmen, Conley saw that one

gunman had chased after the fleeing employees. The other gunman, brandishing a sawed-

off shotgun, was going for the cash register. Conley called 911. The cash register gunman

reacted by running into the drive thru passage. Conley reacted by firing a warning shot

into the glass door of a nearby beverage cooler. The cash register gunman reacted, raising

his shotgun toward Conley. Conley fired again, this tiine directly at the cash register

gunrnan. The cash register gunman immediately dropped his shotgun, grabbed himself

7

across his stomach, and fell to one knee. Just as the cash register gunman dropped to one

knee, the second gunman appeared in the drive thru passage.

Going to the aid of the cash register gunman, the second gumnan leveled his own

shotgun at Conley. Conley ducked behind a doorframe. Although he was not physically

injured, the blast from the second gunman's shotgun struck the doorframe at face level.

Conley shot two more times, and the second gunman fired again. Conley fired a couple

more shots, and the gunmen fled. However, left behind was the shotgun that had been

dropped by the cash register gunman.

Police arrived minutes later. Unknown to Conley at the time, the cash register

gunman had been shot in the buttocks, and the second gunman had a through-and-tlu-ough

gunshot in the forearm.

Police later leaned that a fingerprint on the shotgun lefl behind at the Beverage

Oasis matched that of Cecil Howard, an associate of Perez. In addition, Perez later

admitted it was he who shot at Conley. Perez also admitted that, during the Beverage

Oasis robbery, he had been wounded by gunfire from Conley. See Trial Transcript

Volume 8, Perez Statement To Police, pages 1426-1428. See also testimony of Clifford

Conley, Trial Transcript Volume 5, pages 877-908; testimony of Christopher Atchison

(Beverage Oasis employee) , Trial Transcript Vol. 5, pages 864-876; testimony of Donald

Little (Beverage Oasis employee), Trial Transcript Vol. 6, pages 977-993; testimony of

Robert Smith (stepson of Kerry Perez), T'rial Transcript Vol. 7, pages 1218-1219. See

also Appendix A, Trial Transcript Summary, p. 16-18, summary of testimony of Sgt.

Michael Haytas, who conducted the Beverage Oasis crime scene analysis; Appendix A,

8

Trial Transcript Summary p. 20, summary of testimony of Robin Roggenbeck, BCI

fingerprint examiner regarding the fingerprint on the Beverage Oasis shotgun.

Murder At The Do Drop Inn

Like Clifford Conley, Ronald Johnson, a patron of the Do Drop Inn, was not

compliant. On March 5, 2003, just before closing, Johnson and others mingled in the bar.

Two masked gunman burst in. Everyone was ordered to the floor. One gunman went for

the cash register. The other gunman, brandishing a .357 caliber revolver, went to rob the

patrons of cash and jewelry. Johnson, who had on a leg brace from a prior injury, did not

go to the floor.

In a statement to police, Perez himself explained what happened next:

Perez: Oh, to be honest, he was told not to movc.

Detective: Um-hum.

Perez: And he moved. You know? He used the word `nigger' in there. And Iain't got to listen to a goddamn thing he got to say in there.

Detective: Okay.

Perez: It - it cost him his life. He moved. It's a sad situation.

Detective: Yes, it is. You feel regret for it?

Perez: I'll bet you - bet you - I thought about this shit every night. Do I gotregrets? A whole bunch, man.

Detective: How did - how did it all go down.

Perez: Approached the building from the side. Way out front, walked in thedoor, told everybody don't move, everybody get down on the floor. He said Iain't got to do a goddamn thing you say, nigger. Something to that effect. Toldhim don't move, don't look. He looked and moved and ran his mouth. It costhim his life. Vol. 8, pgs. 1415-1416. (Repeated Vol. 8, pgs. 1437-1438, pgs.1470-1471). (Emphasis added).

9

Perez's Stepson Robert Smith Speaks Up

Seven months after the Do Drop Inn robbery and the murder of Ronald Johnson,

Perez got locked up in Clark County jail for an unrelated theft offense. While Perez was

locked up, Robert Smith, the teenage son of Perez's then wife, Debra Smith Perez,

approached school counselor James Copeland with a troubling secret. Robert told

Copeland that his steplather was the one who killed the man at the Do Drop Inn. Robert

wrote out a statement for Copeland, (State's Ex. 80) and Copeland called Springfield

police. Detectives responded, and Robert repeated the story to the police. Robert's

mother, Debra Smith Perez, was summoned to the school. She was supportive of Robert

and cooperative with the police.

During the trial, Robert identified the weapons Perez had kept around the house,

being the .357 revolver (the Johnson murder weapon) and the sawed-off shotgun (the

weapon left behind at the Beverage Oasis). Robert testified that on the day after the

Beverage Oasis robbery, Perez admitted the details of the crime. Perez admitted to Smith

that he had shot at the Beverage Oasis victim, and that both he and his associate Cecil

Howard had been struck by gunfire during the robbery.

Robert also testified that Perez bragged about the murder of Johnson. The day

after the murder, Robert explained, there was a headline in the local paper. Perez pointed

to that headline and said to Robert and his mother, Debra Smith Perez, "Look, I made the

front page." Perez also said "I had to [kill] an MF'er last night", and that he killed the

victim for "calling him the `N' word." Perez also bragged about the power of the .357

revolver he used to kill the victim, and said the hollow point bullets he used would

10

"explode on impact." See testimony of Robert Smith, Trial Transcript Vol. 7, pages

1204-1225. See also Appendix A, Trial Transcript Summary, pgs. 25-26.

Debra Smith Perez Cooperates With Police

Summoned to her son's school, Debra told police what she knew about Perez's

crimes. She agreed to cooperate with police. She told police about gun transactions she

made on behalf of Perez. She consented to a premises search and turned over several of

Perez's robbery masks.

At the behest of police, Debra twice visited with Perez while he was locked up in

Clark County jail on unrelated theft charges. Each time, Debra and Perez were in a

visitation booth separated by glass. They spoke by telephone, each having a receiver on

their side of the glass. On Perez's side of the glass, there was a deputy station with a desk

positioned one foot away from the visitation booth door. A deputy always sat at that desk,

and inmates and deputies were always milling about the desk. The visitation booth door

was not solid, but had an open metal screen that served as a window. Each time Perez

conversed with his wife, the deputy at the desk could hear talking. Police recorded the

conversations with Debra's consent, using a voice recorder on Debra's side of the glass.

See Appendix A, Trial Transcript Summary, for details and page references. Note

suppression hearing testimony summary of Sheriffs Captain Dave Rapp, Sheriffs

Deputies Garman, Sperry, Lehman and Estep, Springfield police officers Lieutenant

Moos, and detectives Flores and Hicks. Appendix A, Trial Transcript Summary, pgs. 6-

12. Also, see Motion To Suppress Hearing, conducted on August 16-18, 2004, three

volumes, and Motion To Suppress Hearing, conducted on July 5, 2005, one volume.

11

During the jail visit of October 24, 2003, Debra told Perez that police were asking

questions about her gun purchases. Perez told her not to worry, and if the police came

back, she was to tell them she knows nothing. Trial Transcript Vol. 7, pgs. 1252-1265. A

second jail visit took place on November 12, 2003. Debra told Perez that the police

continued to ask questions, and that she was scared and didn't want to go to jail. Perez

talked about what could happen if he confessed to police. Trial Transcript Vol. 7, pgs.

1272-1300. See also Appendix A, Trial Transcript Summary, pgs. 27-28.

Perez Requested An Interview With Police And Eventually Confessed

Shortly after the November 12, 2003, jail visit with Debra was over, Perez told

jail personnel he wanted to speak with the police. That word was relayed to Springfield

police detective Sgt. Flores, who relayed that information to Springfield police detectives

Hicks and DeWine. Detectives Hicks and DeWine went to County jail and met face-to-

face with Perez. At the suppression hearing, Detective Hicks told of that encounter.

Q: [Defense Counsel Butz] What conversation did you have withMr. Perez before the tape recorder started?

A: [Detective Hicks] We went over, we went into the floor he wason. They got him out of the cell. We asked him: You contacted ourdispatcher, wanted to talk to us; and he said, yeah, I want to try tofind out what was going on. My wife was here earlier and said youall had been by the house and told him we would go next door andtalk about it if he wanted to, which he agreed to do.

Q: Anything else happen prior to the tape being turned on?

A: No.

Q: When you went to jail, he was already there, right?

A: Yes.

Q: And you knew why he was there.

12

A: Yes.

Q: What was your understanding of why he was in jail?

A: There's - he was on, I believe, like a burglary or a theft.

Q: And you knew he had a lawyer.

A: No, I didn't know that.

Q: You said you didn't know he had a lawyer on that charge?

A: No, I didn't know if he did or not. I didn't have that charge, Ihad nothing to do with that charge.

Q: Did you, when you encountered him, did you say: Mr. Perez, doyou have a lawyer for the charge that brings you to jail?

A: No, because he requested to speak with us.

Motion to Suppress, Vol. 2, pgs. 260-261.

Perez went with detectives Hicks and DeWine to the Springfield police station.

Perez was Mirandized and signed a rights waiver. This exchange between Perez and the

police, along with the entire interview, was videotaped. See State's Ex. 26A, Unredacted

Video Interview With Perez. For a transcript of the interview, see Trial Transcript Vol. 8,

pgs. 1333-1472. See also Appendix A, Trial 1'ranscript Summary, pgs. 6-12

(Suppression hearing), pgs. 28-29 and 31-32 (Trial testimony).

The interview started out with Perez telling police he suspected that one of his

friends, John McGee, was responsible for the string of bar robberies and the murder at the

Do Drop Inn. Perez explained that McGhee wanted to do some bar robberies and asked

Perez to loan him some weapons. Perez said he accommodated his friend, and loaned

McGhee a .357 revolver and a shotgun. Afterwards, according to Perez, McGhee gave

the guns back. A couple of days later, according to Perez, his wife Debra sold the 357.

13

As the interview progressed, Perez dropped the McGhee angle. Perez admitted it

was he who was responsible for the string of bar robberies and the killing at the Do Drop

Inn. Perez asked that police not charge Debra with any crimes. Police responded that it

was not their intent to charge Debra.

Perez asked if he could telephone Debra to let her know that he confessed and

she need not worry about being charged. The detectives agreed. Detective Estep was

quickly dispatched to Debra's honie to advise her that Perez would be calling from a

phone in the detective bureau. Debra consented to the recording of the call. Detective

Estep got that word back to the detective bureau, and Perez then placed the call to Debra.

As Perez spoke to Debra, detectives were in the same room with Perez, and detective

Estep was sitting with Debra at her home. The call was made using detective Estep's

telephone, which is continuously recorded as a regular practice of the detective bureau.

During that call, Perez told Debra he had confessed to everything. See State's Ex. 88

(audio of telephone call). For a transcript of this telephone call, see Trial Transcript Vol.

8, pgs. 1473-1499. See also Appendix A, Trial Transcript Summary, pgs. 6-12

(Suppression hearing), pgs. 28-29 and 31-32 (Trial testimony).

Jury Never Learned That Perez Was A Violent Career CriminalWho Almost Escaped While Capital Charges Were Pending

Defense counsel were well aware that Perez was a career criminal who had been

incarcerated most of his adult life. See Doc. 11, Defendant's Motion To Appoint Bentley,

Austin and Smalldon, filed December 30, 2003; Doc. 12, Order Granting Appointments,

filed December 30, 2003; Doc. 14, Defendant's Motion For Release Of Sensitive Medical

Records, filed April 7, 2004; Doc. 99, Defendant's Motion For Prison Records, filed

April 8, 2005; Doc. 100, Order Granting Defendant's Motion For Prison Records, filed

14

April 8, 2005; Doc. 105, Order Granting State's Request For Prison Records, filed

August 12, 2005.

Defense counsel were also well aware that this sort of information (Perez's

violent criminal past and escape attempt) is better kept away from the jury. See Doc. 114,

Defendant's Motion In Limine Regarding Prison Records, filed August 24, 2005. In fact,

Perez unsuccessfully moved for a mistrial when his friend George Remmers, testifying

for the State, inadvertently mentioned that Perez had been in prison. See Trial Transcript,

Vol. 5, pgs. 815-816; see also Appendix A, Transcript Summary, pgs. 15-16. Moreover,

Perez was successful in having "some statements Mr. Perez made to deputies regarding

efforts of escaping" excluded from the State's evidence. See Trial Transcript, Vol. 5, pg.

766; see also Appendix A,1'ranscript Summary, p. 14.

In this context of keeping a lid on Perez's violent criminal past and his "efforts of

escaping", the mitigation presentation was brief. Perez's stepfather, Ray Paris, spoke of'

Perez's life up to the age of 12 (Perez was 40 at the time of trial). See Trial Transcript,

Vol. 11, pgs. 1729-1738. See also, Appendix A, Trial Transcript Summary, pgs. 32-34.

After Paris's testimony, the defense rested their mitigation case. Out of the

hearing of the jury, Perez acknowledged he waived a mitigation pre-sentence

investigation and appointment of an additional mitigation psychologist. The following

colloquy ensued.

The Court: Mr. Schumaker, do you have anything else?

Mr. Schumaker: [Prosecutor] Yes, Your Honor. At this stage ofthe proceedings we would ask that a record be made now that thecases are closed. It's my understanding that the Court provided amitigation specialist and also a psychologist to the Defendant

15

and they're not being called as witnesses, and the State wouldlike to make a record that apparently that's a trial strategy at thispoint and that mitigation was fully explored in this case.

The Court: It's the understanding of the Court that not only wasa mitigation specialist and a psychologist provided pursuant tostatute but the other day the Court also gave you the opportunityto have a presentence investigation and hire anotherpsychological for purposes of the second phase of thisproceeding; and the record would also reflect that if that hadbeen requested, the Court would not have proceeded today withthe second phase of the trial.

Mr. Butz: [defense counsel] Well, if we could break those downinto to parts as to what the Court did the other day. Weabsolutely agree. Mr. Perez had a right to a presentenceinvestigation and a mental exam, which we waived. As towhether or not we had a mitigation specialist and apsychologist, the record speaks for itself; and I don't think atthis point or in any otl:er point of the case it's the Prosecutor'sbusiness; and so I object to anytfiing being put on the recordlike the Prosecutor's just done.

Trial Transcript, Vol. 11, pgs. 1742-1743. (Emphasis added).

Other Bad Acts Excluded From Mitigation Deliberations

After the jury had deliberated for about two hours, they issued a question: "What

was the date of Sugarbaker's and the time of the confession tape?" See Clerk's Trial

Exhibit Binder, pg. 1857. The following colloquy ensued.

The Court: We're on the record in case of State of Ohio v. KerryPerez. The time is 2:35. The jury's been deliberating and has senta question to the Court which the Court has already shared withCounsel. The question was: What was the date of Sugarbaker's,period, and the time of the confession tape. It's the suggestion ofthe Court with regard to the date of Sugarbaker's that I reply asfollows: For the purposes of this phase of the trial, you may onlyconsider the aggravating circumstances that the Court haspreviously instructed you on. You may not consider evidence ofother acts, period.

16

Mr. Butz: [defense counsel] And tliat's a satisfactory responsefrom the Defendant's standpoint.

Mr. Schumaker: [Prosecutor] State agrees, Your Honor.

The Court: And it's also the understanding of the Court that theState and the Defendant have agreed to supply the date of the tapeto the jury, that date being November 12, 2003. Is that correct?

Mr. Schumaker: That's Correct, Your Honor.

Mr. Butz: That is our agreement.

The Court: Okay. This is acceptable. Then I have written theseresponses on the note that the jury has given me, and I'll send itback with the Bailiff.

Mr. Schumaker: Thank you.

The Court: This hearing's adjourned.

Trial Transcript, Vol. 11, pgs. 1784-1785.

After the response was delivered, the jury deliberated another 5 hours, until they

broke for the night. See Trial Transcript, Vol. 11, pgs. 1787-1789. After 2 and a half

hours of additional deliberation the following morning, the jury returned a death verdict

and affirmed it during polling. See Trial Transcript, Vol. 12, pgs. 1791-1796.

Following briefing by Perez and the State, the trial Court issued a written

decision imposing a death sentence. See Doc 144, Trial Court Sentencing Opinion, filed

December 9, 2005.

17

LAW AND ARGUMENT

Response To Proposition Of Law No. 1: Where Perez's Other RobberiesWere Admitted As "Other Bad Acts", And Not As Crimes Under The"Course Of Conduct" Capital Specification, Perez's Proposition Of Law 1 IsFounded On A False Factual Premise, As Well As Being Non-Justicable DueTo Waiver

Despite contrary argument from the State at trial, the trial Court admitted

evidence of Perez's other robberies (Nite Owl, 19"' Hole, Sugarbaker's and the Lantern)

as "other bad acts" pursuant to Evidence Rule 404(B), and not as crimes in a "course of

conduct" under the capital specification, ORC 2929.04(A)(5). See Doc. 128, Entry

Regarding Other Bad Acts Evidence, filed September 7, 2005. When during mitigation

deliberations the jury posed a question about the Sugarbaker's robbery that could muddle

this dichotomy, the trial Court, with express agreement of Perez and the State, instructed

the jury in crystal clear language that: "For purposes of this phase of the trial, you may

only consider the aggravating circumstances that the Court has previously instructed

you on. You may not consider evidence of other acts." See Trial Transcript, Vol. 11,

pgs. 1784-1785; see also written jury question and trial Court's written answer, contained

in Clerk's Trial Exhibits Binder filed with this Court, page marked 1857. (Emphasis

added). Given these indisputable facts of the trial record that the other robberies were not

admitted as "course of conduct" crimes, Perez's Proposition of Law No. I is founded on

a false factual premise, and is therefore invalid.

Before the case was submitted to the jury, Perez and the State battled over

whether Perez's other robberies (Nite Owl, 19th Hole, Sugarbaker's, and the Lantern)

should be admitted at all. Perez persistently argued that evidence of these other crimes

should be excluded. The State argued these other crimes should be admitted as crimes

18

under the "course of conduct" capital specification, as interpreted by this Court in State

v. Sapp, 105 Ohio St. 3d 104 (2004). See Trial Transcript Vol. 1, pgs. 61-82, especially

the State's argument p. 70-75. See also Doc. 13, State's Bill Of Particulars, filed March

30, 2004. The trial Court broke this impasse and admitted the other robberies as other bad

acts under Evidence Rule 404(B). See Doc. 128, Entry Regarding Other Bad Acts

Evidence, filed September 7, 2005.

The trial Court flatly denied the State's request that guilt phase instructions link

the other robberies with the "course of conduct" specification. Before guilt phase

deliberations, the trial Court instructed the jury that evidence of other crimes was

admitted "for a limited purpose" and that "you thus may not use this evidence for any

other purpose." See Trial Transcript, Vol. 9, Guilt Phase Jury Charge, p. 1669. When the

trial Court afforded the parties an opportunity to comment, the following colloquy

ensued.

Mr. Schumaker: [Prosecutor] Paragraph 25 in this case, I think that

something should be in that paragraph as that evidence may be

relevant to course of conduct. The way the paragraph is structured,

it kind of tells them not to use it in determining course of conduct.

I realize that that's the 404(B) instruction, but in the context of this

case, I thought it might be somewhat misleading.

Mr. Butz: [defense counsel] We object.

The Court: Yeah, I'm not gonna change that. I'll overrule you.

19

As this case is presently postured, whether Perez's other crimes (Nite Owl, 19lh

Hole, Sugarbaker's and the Lantern) could fall under the "course of conduct" capital

specification, is a pure academic debate. 'rhe trial Court concluded they were not, and so

instructed the jury. Given these 1'acts of the trial record, Perez's Proposition of Law No. 1

is based on hypothetical facts and should be rejected on this basis.

Beyond his Proposition of Law No. 1 being founded on a false factual premise,

Perez states an alternative argument that the Beverage Oasis robbery and the attempted

murder of Clifford Conley should not have been included within the "course of conduct"

capital specification. See Perez's Merit Brief to this Court, pgs. 15-17. However, Perez

conceded below that the Beverage Oasis robbery and the attempted murder of Clifford

Conley were properly included within the "course of conduct" specification. Inasmuch

as Perez wholly ignores his concession below, Perez's argument to this Court is

disingenuous. See Trial Transcript, Vol. 1, pgs. 65-66 (express concession by Perez); Doc

88, Perez's Motion To Sever, filed October 12, 2004; See Doc. 128, Entry Regarding

Other Bad Acts Evidence, filed September 7, 2005. Perez's concession below amounts to

a waiver of a contrary claim, and it should be incumbent on Perez to articulate reasons

why he should be relieved from the waiver. Since Perez fails to articulate grounds to be

relieved from this waiver, his alternative argument should be rejected on the basis of

waiver. State v, Miller, 105 Ohio App. 3d 679, 691, (1995); Slate v. Walker, 66 Ohio

App. 3d 518, 522, (1990).

Regardless of Perez's waiver, the trial Court was well within the bounds of the

statute and Stale v. Sapp to include the Beverage Oasis robbery and the attempted

murder of Clifford Conley under the "course of conduct" capital specification. As

20

required under Sapp, the State established "some factual link" between the crimes,

amounting to "some connection, common scheme or some pattern or psychological

thread that ties [the offenses] together." Slate v. Sapp, 105 Ohio St. 3d 104, P52 (2004),

also citing to State v. Cummings, 332 N. C. 487, 510 (1992).

The Beverage Oasis and the Do Drop Inn were takeover type robberies, where

Perez and his associate were loud, bold, and demanding of immediate submission by their

victims. Where their weapons were prominently displayed, intimidation and bravado

were commonalities in the crimes. The boldness of the takeover was enabled by Perez's

ski mask disguises, ensuring that the odds of identification by his victims would be

remote. "I'he motivating factor of the crimes was simple greed, where the goal was to grab

money and property and make a quick exit. And, significantly, resistance by the victims

was met with immediate and deadly force.

While the amount of time elapsing between the crimes - in this case 8'/z months -

is a relevant factor in determining whether the offenses are part of the same course of

conduct, it is the commonalities that are paramount. State v. Sapp, at P53 to P57. In his

briei' to this Court, Perez references that eight inonth "temporal proximity", but fails to

articulate any reason why the time gap would unlink these crimes. See Perez's Merit

Brief to this Court, pgs. 16-17. This shortcoming, in light of Perez's waiver of the claim

in the Court below, show the trial Court acted properly under Sapp by allowing the

Beverage Oasis crimes to fall under the "course of conduct" specification.

21

Response To Proposition Of Law No. 2: Evidence Of Othcr ArmcdRobberies, Where Compliant Victims Were Not Harmed, ConstitutesProper 404(B) Evidence To Show "Motive, Intent, Purpose, Or Plan" ForThe Charged Crimes, Where Non-Compliant Victims Were Harmed

The evidence of Pcrez's other robberies (Nite Owl, 19°i Hole, Sugarbaker's the

Lantern) were admitted to establish intent: that Perez purposefully intended to kill

Ronald Johnson, and purposefully attempted to kill Clifford Conley, because they were

non-compliant robbery victims. The other robbery victims, who kept quiet and readily

gave up the goods, were not harmed, and survived the ordeal without a scratch. See Trial

Transcript, Vol. 1, pgs. 70-78 (State's argument regarding intent). The trial Court

admitted the other acts evidence on the issue of intent (Doc 128), and instructed the jury

"you may consider this evidence only for the purpose of deciding whether it proves tlie

Defendant's motive, intent, purpose, or plan to commit the offenses charged with this

trial." See Trial Transcript, Vol. 9, Guilt Phase Jury Charge, p. 1669. (Emphasis added).

This outcome is well within the bounds of Evidence Rule 404(B). The standard

for admitting other acts evidence is whether the evidence tends to show motive, plan or

intent, and not whether the evidence is necessary to prove an element of the offense.

Moreover, the similarity of the other act crime to the charged crime is not necessary, as

long as the other act crime "`tend[s] to show' motive, plan, or intent." State v. Crotts, 104

Ohio St. 3d 432, P15 (2004).

In this case, the other act robberies - Perez confessed to these crimes - showed

that compliant victims were not harmed. Relative to the charged crimes, punishment for

resistance was the intent behind the attempted murder of Clifford Conley and the murder

of Ronald Johnson. The relationship of the other acts to the charged crimes showed

purpose, and negated accident.

22

In all the robberies, while shouting for compliance with his demands for money

and property, Perez boldly brandished a firearm. When the victims were compliant, there

was no gunfire. When non-compliant victims were robbed, gunfire rang out. These basic

facts showed Perez as well in control when robbing compliant victims. When compliant

victims were robbed, Perez did not shoot. There were no gunshots at all, whether

accidental shots or warning shots. When victims resisted, Perez would shoot. The lack of

shooting with compliant robbery victims would "tend to show" that Perez intended to

shoot both Clifford Conley and Ronald Johnson; that he "purposefully" (and not

accidentally) attempted to cause the death of Conley, and that Perez did in fact

purposefully cause the death of Johnson. The shootings of Conley and Johnson weren't

accidental, they were purposeftil, and the other crimes "tended to show" that fact.

In asserting his Proposition of Law No. 2, Perez ignores these facts and law.

Instead, Perez contends the other acts evidence was admitted to establish identity. Perez

then argues to this Court that the other acts robberies lacked sufficiently unique modus

operandi to establish identity. And, contends Perez, because he confessed to the crimes,

identity was not at issue. Perez's Merit Brief, pgs. 22-23.

Perez's contention has no relation to proceedings below, especially where the jury

was instructed to "consider this evidence only for the purpose of deciding whether it

proves the Defendant's motive, intent, purpose, or plan to commit the offenses charged

with this trial." See Trial Transcript, Vol. 9, Guilt Phase Jury Charge, p. 1669. (Emphasis

added). The other acts instruction as given to Perez's jury is word for word identical to

that set forth in Ohio Jury Instructions, Vol. 4, Section 402.61. Moreover, the "identity

alternative" in 4 OJI 402.61(d), was not used. What was used; i.e. "motive, intent, plan or

23

purpose", in light of the "identity alternative" not being used, confirms the fact that

Perez's Proposition of Law No. 2 is also founded on a false premise: the other acts

evidence was not used to establish identity, and Perez's contrary representation is false.

Moreover, the record is clear that Perez claimed his shooting of Ronald Johnson

was accidental. Perez told police "I didn't mean to kill the guy." Trial Transcript Vol. 8,

pg. 1437. Perez again told police "Like that night (inaudible). That's the last fuckin' thing

I wanted. You know, I figure in and out, get the money, get in, get out, go. Quick, fast, in

quick, get going quick." Trial Transcript Vol. 8, pg. 1464. Perez told his wife "So, not

only do they got me for the robbery and, really, the accidental shooting, you know what

I'm saying?" Trial 1'ranscript, Vol. 8, pg. 1482.

Remarkably, Perez presently concedes to this Court that he claimed below, three

times, that his shooting of Johnson was accidental. Equally remarkable, Perez presently

contends to this Court that his shooting of murder victim Ronald Johnson was accidental.

Perez's Merit Brief, pgs. 25-26. In so doing, Perez simply confirms that propriety of

admission of the other acts crimes on the issue of "intent"; i.e. that the shooting was

purposeful, not accidental. There is no error in the admission of the other acts evidence,

and Perez's argument to this Court confirms that fact.

24

Response To Proposition Of Law No. 3: Where Debra Smitlr Perez ElcctcdIn Open Court To Tcstify, And Perez Had No Expectation Of Privacy InJailhouse Communications With His Wife, Their Taped Conversations WereProperly Admitted As Evidence Against Perez

Contrary to Perez's present contentions to this Court, it was fully known to him

that the State intended to call Debra Smith Perez as a witness. Moreover, the facts

justifying admission of their recorded conversations of October 24, 2003, and November

12, 2003, were fully aired out during two suppression hearings. See Doc. 54, Defendant's

Motion To Suppress, filed August 13, 2004; Doc. 91, Defendant's Post-Hearing Brief In

Support Of Suppression, pgs. 244, filed November 8, 2004; Doc. 94, Defendant's Motion

For Findings Of Fact, filed December 28, 2004; Doc. 124, Defendant's Motion,In Limine

To Prohibit Spouse's Testimony, filed August 29, 2005. See also Suppression I-Iearing

Transcript, Vol. 2, testimony of Deputy Tad Sperry, pgs. 269-278, testimony of Deputy

Johnny Lehman, pgs. 290-296; See Also, Appendix A, Trial Transcript Summary, pgs. 6-

10. In addition, Debra Perez Smith stated in open court (out of the hearing of the jury) her

intention to testify as a witness for the State. See Trial Transcript, Vol. 8, pgs. 1511-1513;

see also Appendix A, Trial Transcript Summary, p. 30.

The trial Court properly recognized that Perez, let alone any county jail inmate,

could not expect to have a secret conversation with an outside visitor. In county jail, as it

relates to an inrnate, there is always a third party present. The only exception would be

for attorney-client visits, where the ability to engage in confidential communications is

afforded and expected. Otherwise, third persons are always present, in the bathroom, in

the shower, in the cells, in the hallways, and everywhere else an inmate could go. In fact,

affording "privacy" to an inmate, away from prying ears and eyes, is by definition a

security threat unacceptable in a county jail setting. It is no different in a visitation booth.

25

And Perez, being well versed with Clark County Jail, to say nothing of several Ohio

prisons, would very well know that privacy and prisons are mutually exclusive.

Deputies Sperry and Lehman explained the particulars of Perez's lack of privacy

when visiting with Debra. It was Deputy Sperry who walked Perez past the always-

staffed security desk, positioned right outside the visitation booth door that had an open

metal screen window. Motion To Suppress, Vol. 2, pg. 277-278. The lack of privacy is

further validated where both Deputies Sperry and Lehman heard Perez talking through

the open metal screen window. Motion To Suppress, Vol. 2, pgs. 273, Vol. 3, pg. 292.

'Fhe trial Court properly found that "under the circumstances present at the time

of both visits the defendant was aware of his surroundings and could not have expected

that his statements would not have been overheard by officers stationed in or passing

through the security area just outside the wire mesh of his visitation booth." Doc. 117,

Entry Overruling Defendant's Motion To Suppress, p. 3, last paragraph, filed August 24,

2005. (Emphasis added). The trial Court's finding that Perez "was aware of his

surroundings" is undoubtedly a reference to the reality that no inmate of a county jail

could expect to have a "private" conversation with a visitor. A contrary finding might

very well mandate privacy during inmate visitations, and unwittingly lead to a serious

threat to jail and prison security. This factor was undoubtedly in the contemplation of the

trial Court when it made its ruling.

Perez's contrary argument to this Court hinges on his bare claim that "it was

reasonable for Perez to believe that the conversation between himself and Debra was

private." Perez's Merit Brief, pg. 36, paragraph 2, third sentence. Perez could have

elucidated the reasons for this belief by his own testimony during the suppression

26

hearing, but he chose not to do so. Had he testified, Perez could have been cross-

examined about the layout of the security desk, the continual presence of a deputy at the

security desk, the open metal screen door, and so on. Perez should not now be permitted

to "testify" to this Court about his expectation of privacy, where he purposely avoided

testifying at the suppression hearing.

The evidence before the trial Court supports its findings that Perez had no

expectation of privacy in his jailhouse visits with Debra. It's a fact that a Deputy was not

physically standing next to Perez in the visitation booth. However, free and easy

commentary by Perez to Debra about "stick[ing] with the story" about the gun

transactions she made on his behalf was easily heard by Deputy Lehman through the

open screen window. See Transcript Suppression Hearing, Vol. 2, pg. 290-296; see also,

Appendix A, Trial Transcript Summary, pgs. 6-10. Perez's apparent lack of concern

about the people who could hear his conversation is more likely due to his assumption

that the listener would be lackadaisical, as opposed to a real belief that his commentary to

Debra was secret and heard by her ears alone. In any event, the facts support the ruling by

the trial Court relative to the admission of conversations between Perez and Debra

during jailhouse visits. Perez's bare claims to the contrary fail, especially where he

purposely avoided telling his side of the story at the suppression hearings.

27

Response To Proposition Of Law 4: Where Perez, Uncharged For TheCrimes In Question, Asked To Speak With Police, And Then Waived HisMiranda Rights On Videotape, His Confession Was Properly Admitted,Notwithstanding That Perez's Motivation Speak With Policc Was AMisplaced Intention To Protect His Wife From Criminal Charges

The videotape of Perez's interview with police shows he understood his rights, he

waived his rights, and that Perez kept talking and talking and talking until he told his

side of the story about the robbery spree, the shooting of Clifford Conley, and killing of

Ronald Johnson. See State's Ex. 26A, Perez's Videotaped Interview with Police

(unredacted); see also Trial Transcript Vol. 1329-1473 (transcript of interview); see also

Appendix A, Trial Transcript Summary, pgs. 28-30. And, although he had no idea that

she had already turned him into police, there is no doubt Perez decided to speak with

police to protect his then wife, Debra Perez Smith, from criminal charges. Despite

Perez's claims to the contrary, these facts show Perez's constitutional rights were

respected and upheld, and the admission of his confession is well within constitutional

boundaries.

Perez was locked up when he conversed with Debra (October 24, 2003, and

November 12, 2003), Perez was locked up when he asked to speak with police

(November 12, 2003). However, Perez was locked up for unrelated theft offenses. Perez

was not locked up for, nor had he been charged with, nor had he been interviewed by

police, regarding any of the robberies. Perez was not locked up for, nor had he been

charged with, nor had he been interviewed by police, regarding the shooting of Clifford

Conley or the murder of Ronald Johnson. As far as Perez was concerned, police knew

nothing about the robbery spree, the shooting of Clifford Conley, or the murder of

Ronald Johnson. Perez did know, however, his then wife Debra Smith Perez, as well as

28

her son Robert Smith, knew all about his wrongdoing, especially where Perez bragged

to them about robbing, shooting, and killing.

Perez might very well feel betrayed by Debra, because when she visited him on

October 24, 2003, and November 12, 2003, he had no idea she and her son Robert had

already turned him into the police. Perez might very well feel tricked by Debra, because

wlren she visited him on October 24, 2003, and November 12, 2003, he had no idea that

she was a wired police informant. Perez might very well feel foolish, because when he

asked to speak to police to protect her, he had no idea she was helping police against him.

While Perez's feelings of betrayal, trickery, and foolishness, are, from his perspective,

fully justified, these feelings do not breach constitutional protections under the facts of

this case.

Undercover work by police, whether by using wired informants, or by police

disguising themselves as ordinary citizens, is commonplace activity. The best police

work would be done where the target would have the least amount of suspicion with the

undercover operative, in conjunction with the highest level of trust and confidence in the

undercover operative. In other words, the best police work is done where the target

would feel the largest sense of betrayal, when the target would suddenly learn the

undercover operative was really working for the other team.

It is long and well settled that 5`h Amendment Miranda protections do not attach

where imdercover police activity, such as that in Perez's case, leads to a confession by a

duped suspect. In Illinois v. Perkins, 496 U.S. 292 (1990), the case relied on by the trial

Court, the facts showed Perkins as a suspect in a murder. Perkins was incarcerated on

unrelated charges with his friend Charlton. Unknown to Perkins, Charlton had informed

29

on him to police about a murder Perkins told Charlton he committed. Again unknown to

Perkins, Charlton introduced Perkins to a supposed compatriot in crime, who was really a

police officer in the disguise of a prisoner. Relying on Perkins's misplaced trust in

Charlton, the undercover police officer befriended Perkins, who eventually bragged in

detail to the undercover officer about the murder in question. The question before the

Perkins Court was whether the undercover officer was obligated to give Miranda

warnings to Perkins before questioning Perkins about the murder. In an 8 to I decision,

the Perkins Court said no.

Conversations between suspects and undercover agents do not implicatethe concerns underlying Miranda. The essential ingredients of a "police-dominated atmosphere" and compulsion are not present when anincarcerated person speaks freely to someone that he believes to be afellow inmate. Coercion is determined from tl:e perspective of thesuspect. Rhode Island v. Innis, 446 U.S. 291, 301 (1980); Berkemer v.McCarty, 468 U.S. 420, 442 (1984). When a suspect considers himself in

the company of cellmates and not officers, the coercive atmosphere islacking. Miranda, 384 U.S., at 449 ("The 'principal psychological factorcontributing to a successful interrogation is privacy -- being alone with theperson under interrogation"); id., at 445. There is no empirical basis forthe assumption that a suspect speaking to those whom he assumes are notofficers will feel compelled to speak by the fear of reprisal for remainingsilent or in the hope of more lenient treatment should be confess. Perkins,p. 296-297. (Emphasis added).

Not surprisingly, other cases with different facts have different outcomes. In

United States v. Henry, 447 U.S. 264 (1980), a case relied upon by Perez below -

although dropped in this Court - I-Ienry was indicted and incarcerated for bank robbery.

Federal agents recruited an informant, who was incarcerated at the same jail, to befriend

Henry and secure incriminating statements about the bank robbery. The informant was

successful, and testified against I-Ienry, who was convicted of bank robbery. The question

before the Henry Court was whether the incriminating evidence was admitted in violation

30

of Henry's Sixth Amendment right to counsel. The Henry Court answered in the

affirmative. The key fact was not that an undercover infomiant elicited incriminating

evidence from a duped suspect, but rather that this activity. took place after indictment

and the consequent attachment of the Sixth Amendment right to counsel.

In this case, Perez's rights under the Fifth Amendment and the Sixth Amendment

did not attach simply because Perez was sitting in jail on unrelated charges. Moreover,

Perez had said not one word to police investigators about the robbery spree, the shooting

of Conley, or the killing of Johnson. Police had said not one word to Perez about the

robbery spree, the shooting of Conley, or the killing of Johnson. Neither the Fifth

Amendment nor the Sixth Amendment are even implicated, let alone breached, where

Perez incriminated himself to Debra, not knowing she had already turned him into police.

And the Fifth Amendment is not breached simply because Perez held the mistaken belief

he needed to initiate contact with police on the robbery spree and murder to protect Debra

from criminal charges for her gun transactions on his behalf.

When Perez asked to speak with police, he did not do so as a frightened rookie

who could be pushed around and intimidated by ordinary cops. Instead, when Perez

asked to speak with police, he did so as a 38 year old violent career criminal, who had

been incarcerated most of his adult life. Moreover, when Perez asked to speak with

police, he had an agenda in place, intending to manipulate and dupe the ordinary cops

into wrongly believing he and his wife were mere sideline players in a robbery and

shooting spree done by their friend, John McGhee. For the span of 60 pages of transcript,

Perez kept up a song-and-dance routine with police that John McGhee did the crimes, and

all he did was loan John the guns used to commit the crimes. All Debra did was sell the

31

guns for spending money. And, while the crimes were going on, Perez explained that he

was out of town driving big rig trucks for Mcllvaine and Dingledine. The gunshot wound

on his arm? That was from when he was trucking and got robbed in Chicago, but didn't

report the crime to police because he was an ex-con. For the span of 60 pages of

transcript, Perez was running the show with police, and it was he who thought he was

manipulating the cops, not the other way around. See Trial Transcript, Vol. 8. pgs. 1333-

1393.

Perez now makes the brand new claim that his confession was involuntary due to

coercive interrogation by police - supposed false threats by police to jail Debra. In the

trial Court below, Perez claimed his confession was involuntary because he was too

doped up on "mind altering drugs" to knowingly waive his rights. See Doe. 50, Motion

To Suppress, filed May 19, 2004; Doe. 91 Defendant's Post-Hearing Brief In Support Of

Suppression, pgs. 1-2. Later, Perez moved to suppress his conlession on a "technical"

violation of the Fifth and Sixth Amendment, unrelated to voluntariness of the confession.

See Doc 95, Defendant's Second Motion To Suppress, filed January 20, 2005. Not until

now has Perez claimed his confession was involuntary due to browbeating by police.

Because this claim was not raised below, it is waived and should be additionally denied

on that basis. State v. Miller, 105 Ohio App. 3d 679, 691, (1995); Stale v. Walker, 66

Ohio App. 3d 518, 522, (1990).

In any event, the trial record shows that Perez's rights were upheld and respected,

and that admission of his confession was well within constitutional bounds.

32

Response To Proposition Of Law No. 5: Beyond The Claim Being Non-Justicable Due To Waiver, The Confrontation Clause Of The SixthAmendment Is Upheld Where Debra Smith Perez Testified In Open CourtAnd Was Subject To Cross-Examination About Her Taped StatementsEarlier Admitted

Contrary to Perez's contention, his rights Lmder the Sixth Amendment

Confrontation Clause were met when the witness in question - Debra Perez Smith -

confronted him in open Court and testified against him. The Confrontation Clause does

not mandate a sequence of presentation of evidence. In other words, the Confrontation

Clause does not mandate that a live witness testify before a recording of a conversation

between the witness and the defendant could be presented. The sequence of presentation,

if regulated at all, would be a matter of State law. An issue is raised under the Sixth

Amendment where the declarant of an out-of-court statement never appears for testimony

and cross-examination. The hallmark of the Confrontation Clause is a live witness, in

open court, subject to cross-examination by the defendant. That hallmark was met when

Debra Smith Perez appeared in open court and testified against him, fully available for

his cross-examination if he so desired. Crawford v. Washington, 541 U.S. 36, 53-4, 62

(2004).

Moreover, Perez did not raise a Sixth Amendment Confrontation Clause claim

below, and he may not do so now due to the doctrine of waiver. State v. Miller, 105 Ohio

App. 3d 679, 691, (1995); State v. Walker, 66 Ohio App. 3d 518, 522, (1990). Perez did

object below to the admission of his recorded statements with Debra (the jail visits of

October 24, 2003 and November 12, 2003), but he did so on State law grounds. Perez

never claimed a Sixth Amendment violation below, and for good reason, because Debra

33

Smith Perez testified against him in open court. Consequently, Perez's confrontation

clause claim is facially invalid, along with being non-justicable due to waiver.

Response To Proposition Of Law 6: The Record Shows Defense CounselEffectively Represented Perez In Context Of Extensive And Conclusive

Evidence Of Guilt, And In Their Success In Keeping The Jury FromLearning That Perez Was A Violent Career Criminal With A Recent Escape

Attempt

Defense counsel fought like tigers to dismantle the State's case. They fought to

exclude the most damaging evidence against Perez - his own words of confession made

in a videotaped interview with police. They fought to exclude recordings of Perez's own

words of confession made during conversations with his wife. They fought to exclude

evidence of the other robberies Perez confessed to having committed. Even without

victories in these battles, they continued to fight during the trial, and emphasized what

little facts there were in Perez's favor; that he did ultimately accept responsibility for his

crimes, and did make an expression of remorse for victim Ronald Jolmson. By subjecting

the State's case to vigorous adversarial testing, Perez's counsel deserve praise, not

condemnation.

Relative to the mitigation presentation, it would have been no secret to defense

counsel that Perez was a violent career criminal with numerous incarcerations and a

recent escape attempt. Given this bombshell damaging evidence, counsel's task would be

to keep this information away from the jury, by not "opening the door" to cross-

examination by the State. Astute trial defense counsel know that prosecutors are not

potted plants, and astute trial defense counsel know that prosecutors are waiting for the

door to be opened to introduction of bad character evidence. It has been long and well

settled by this Court that unartful presentation of mitigation witnesses can cause the door

34

to be opened to evidence of wrongdoing in the defendant's past. State v. DePew, 38 Ohio

St. 3d 275, 286-287 (1988); State v. Finnerty, 45 Ohio St. 3d 104, 107-108 (1989); State

v. Cooey, 46 Ohio St. 3d 20, 31-32 (1989); State v. Lundgren, 73 Ohio St. 3d 474, 491-

492 (1995; State v. McNeill, 83 Ohio St. 3d 438, 446-447 (1998); State v. Gowdy, 88

Ohio St. 3d 387, 395 (2000); State v. Hughbanks, 99 Ohio St. 3d 365, 381-382 (2003).

This long line of cases is consistent with a lesson from the great jurist,

Oliver Wendell Holmes. Justice Holmes recognized that, if the defendant is a person of

bad character, the attempt to show good character can backfire. If the defendant is a

person of bad character, it would be astute counsel who would steer clear of any attempt

to prove good character. This observation arises from the case of Greer v. United States,

245 U.S. 559 (1918).

In Greer, the defendant claimed error "because the court refused to instruct the

jury that the defendant was presunled to be a person of good character, and that the

supposed presumption should be considered as evidence in favor of the accused...." Id. at

559. There can be no such presumption of good character, wrote Justice Holmes, because

if there was, the government could in every case attack a presumption of good character

with evidence of bad character. Unless the defendant makes the choice to put in evidence

to prove his good character, the govermnent can't put in evidence to prove his bad

character.

For the failure to put on witnesses [to show good character], instead ofsuggesting unfavorable comment, would only show the astuteness of theprisoner's counsel. The meaning must be that character is not an issue unlessthe prisoner chooses to make it one; otherwise he would be foolish to open thedoor to contradiction by going into evidence [of good character].... Id. at 560.(Emphasis added).

35

What this means is that a defendant could keep the jury from finding out he has

bad character traits (like being a violent career criminal with a recent escape attempt) if

he doesn't try to prove he has good character. In the words of Justice Holmes, "instead of

suggesting unfavorable comment", not trying to prove good character "would only show

the astuteness of the prisoner's counsel". If there were bad character traits that would not

go over well with the jury, defense counsel "would be foolish to open the door to

contradiction by going into evidence [of good character]".

One sure way to keep the door closed to the mitigation jury learning of the

defendant's long history as a violent career criminal is to keep the mitigation presentation

brief. Perez's counsel took this route by presenting a single witness, stepfather Ray Paris,

and confining Paris's testimony to Perez's life from age 12 backward (Perez was 38 at

the time of trial). Moreover, it is clear from the record that Perez purposely and

intentionally skipped a pre-sentence investigation and getting a second mitigation

psychologist (they already had Dr. Smalldon). Once again, this was a smart move, since

a PSI would simply detail Perez's long history as a violent career criminal with a recent

escape attempt. Furthermore, a psychologist would be unable to state a "diagnosis", or

give any spin to past life events, without revealing that Perez was a violent career

criminal confined to prison for most of his adult life, who recently attempted to escape

from prison.

It was strategy, not laziness, that kept Perez's mitigation presentation brief. And,

where the jury deliberated on sentence for 9 hours, Perez's strategy to keep the jury from

learning of his long history as a violent career criminal was nearly successful. Perez's

counsel deserve praise, not condemnation.

36

In this context, Perez's subclaims of ineffective assistance wholly and completely

lack merit.

1. Perez was under no constitutional obligation to questions jurorsabout racial bias.

Since this case had a tangential link with racism - by the deceased victim - trial

counsel made a strategic decision to avoid the topic. Trial counsel may well have

decided that villanizing the victim - a racial comment cost him his life - would not only

prove unsuccessful, but possibly harmful to Perez's request for mercy. "1'rial counsel,

who saw and heard the jurors, were in the best position to determine the extent to which

prospective jurors should be questioned." State v. Cunningham, 105 Ohio St.3d 197, 215,

824 N.E.2d 504, 525 (2005). This Court has further found that "'the conduct of voir dire

by defense counsel does not have to take a particular form, nor do specific questions have

to be asked." State v. Braden, 98 Ohio St.3d 354, 373, 785 N.E.2d 439, 461 (2003).

"[C]ounsel is in the best position to determine whether any potential juror should be

questioned and to what extent." State v. Murphy, 91 Ohio St.3d 516, 538, 747 N.E.3d

765, 793 (2001). In fact, this Court has opined that "the decision to voir dire on racial

prejudice is a choice best left to a capital defendant's counsel." State v. Watson, 61 Ohio

St.3d 1, 13, 572 N.E.2d 97, 108 (1991) [emphasis added.] Also, when it comes to

strategic decisions made during voir dire, this Court has emphatically concluded "we will

not second-guess trial strategy decisions such as those made in voir dire." Stale v.

Cornwell, 86 Ohio St.3d 560, 569, 715 N.E.2d 1144, 1153 (1999).

Recently, the United States Supreme Court held that "[t]he trial court is in a

superior position to assess demeanor, a factor critical in assessing the attitude and

qualifications of potential jurors" Uttecht v. Brown, _ U.S. _, 127 S.Ct. 2218 (2007)

37

("Leading treatises in the area make much of nonverbal communication. See, e.g., V.

Starr & M. McConnick, Jury Selection 389-523 (3d ed. 2001); J. Frederick, Mastering

Voir Dire and Jury Selection 39-56 (2d ed. 2005)."). It is no leap of logic to conclude

that trial counsel, who actually interviewed potential jurors (face to face), should be

credited with the same deference. Given this obligation to defer to those who were

actually at the trial, it is worth repeating that Perez "bears the burden of overcoming the

presumption that thc challenged action might be considered sound trial strategy."

Strickland v. Washington, 466 U.S. 684, at 689 (1984). A bare allegation that counsel

should have done more does not meet this burden.

Furthermore, Perez fails to demonstrate any sort of racial issue taking place

during voir dire. It is pure conjecture and speculation that had trial counsel questioned

jurors about racism, either the verdict or the sentence would have been different. To

show prejudice, Perez must demonstrate that jurors who actually sat during the case were

unconstitutionally biased. State v. Dixon, 101 Ohio St.3d 328, 336, 805 N.E.2d 1042,

1054 (2004). Perez fails to cite a single instance that shows Perez's jury was

contaminated by racial biases. As such, in addition to no showing of deficient

performance, there is no showing of "prejudice", where "one is left with pure speculation

on whether the outcome of the trial or the penalty phase could have been any different."

Baze vParker, 371 F.3d 310, at 322 (6`' Cir. 2004).

2. Trial counsel are under no constitutional obligation to makepromises during opening statements that would not be supportedby the evidence.

Defense counsel's opening statement reveals that Perez's strategy was to

acknowledge the wrongfulness of his conduct, and prepare the jury for the mitigation

38

phase of the trial. Trial counsel knew that Perez had confessed to the police that he was

responsible for the murder of Ronald Johnson. In their opening, trial counsel laid out

their strategic theme by stating "[j]ust as Mr. Perez was honest with the police, our

defense for Mr. Perez is honest." See Trial Transcript, Vol. 5, pg. 787. Trial counsel,

being experienced and knowledgeable trial attorneys, knew it would be counter-

productive to over-promise and then not deliver. Because the evidence against Perez was

overwhelming, trial counsel made a strategic decision not to concoct a "fiction" and

argue police coercion, involuntary confession, or planted evidence, or any other fanciful

claim that the jury wouldn't buy. Instead, trial counsel portrayed Perez as a stand-up

person, who admittedly made some mistakes, but one who did not deserve the ultimate

punishment. This was a workable theme, given the facts of the case. Counsel were not

ineffective just because their workable theme did not sway the jury. Also, due to

overwhelming evidence of guilt, Perez cannot demonstrate prejudice.

3. Defense counsel did not give Debra Smith Perez a free ride.

Perez admits that trial counsel cross-examined Debra Smith Perez about her

involvement in the string of armed robberies. I-Iowever, Perez claims they should been

more precise with their questioning, and inquired as to Debra Smith Perez's motive for

testifying. To give this claim any credence, one must first assume that Perez's jury was

composed a bunch of dead heads who required every inference to be spoon-fed to them.

It was abundantly clear after the State's direct, not to mention the defense's cross,

that Debra Perez was peripherally involved in the string of armed robberies. In fact,

defense counsel questioned her extensively about her involvement as follows:

Mr. Butz: Now, you told Mr. Schumaker that nobody threatened you.

39

Debra Perez:

Mr. Butz:

Debra Perez:

Mr. Butz:

Debra Perez:

Mr. Butz:

Debra Perez:

Mr. Butz:

Debra Perez:

Mr. Butz:

Debra Perez:

Mr. Butz:

Debra Perez:

Mr. Butz:

Debra Perez:

Mr. Butz:

Debra Perez:

*+*^^

Mr. Butz:

No.

Okay. Now you cooperated in taping three conversationswith your then husband, right?

Right.

Tell the jury what visit you had from law enforcementduring that period.

Actually, I didn't really have anything until after Keiferbecause they didn't-

That's my point. After Keifer, before you gave consent,you had a lot of visits from law enforcement, didn't you?

Yes.

How many?

I don't know, probably anywhere from seven to ten.

Seven to ten separate visits. Detective DeWine?

Um-hmm.

Detective Flores who was here?

I don't-yeah, he came to the house with him once.

Hicks?

Yes.

Estep? Tall?

I seen him maybe at Keifer and maybe once at the house.

Did they talk to you about complicity?

Debra Perez: They may have, I'm not sure.

40

Mr. Butz: You know, somebody who helps out?

Debra Perez: Oh, yes.

Mr. Butz: And did they tell you that the penalty for complicity wouldbe what?

Debra Perez: I don't know.

Mr. Butz: You didn't get into that?

Debra Perez: No.

Mr. Butz: Okay. Did they tell you that it could be all - in some casesas great as the person who committed the crime?

Debra Perez: Yes, I think they had.

Mr. Butz: So, you understood that.

Debra Perez: Um-hmm.

+****

Mr. Butz: When they came to talk to you, they were talking to youabout things you had done wrong, weren't they?

Debra Perez: No.

Mr. Butz: Well, didn't they ask you a bunch of questions aboutbuying these guns?

Debra Perez: Yes, they asked me about purchasing the guns.

Mr. Butz: Did they suggest it was A-OK?

Debra Perez: No, they didn't suggest it was okay.

See Trial Transcript, Vol. 8, pgs. 1524-1528.)

The record demonstrates that trial counsel compelled Debra Perez to

admit she helped provide the guns in the string of robberies, and she had yet to suffer any

criminal consequences for that wrongdoing. The implication was evident that police were

41

doing Debra a favor by not charging her, due to her testimony. Whether or not that was

true was a factor for the jury to evaluate. Beyond this jury issue of credibility, Debra's

testimony against Perez was independently corroborated by Perez's own confession, as

well as by an abundance of evidence presented by the State. Consequently, Debra's

motive for testifying against Perez was inconsequential, and not a viable grounds for

impeachment.

On appeal, Perez offers nor more than bare speculation as to what would serve as

a more efficient approach at cross-examining Debra Smith Perez. In other words, Perez is

not claiming that trial counsel failed to question her about her interest as a State's

witness. Perez simply speculates that questioning could have been done differently. This

is exactly the type of after-the-fact second guessing which is not permitted under

Strickland.

Furthermore, Perez has not demonstrated prejudice. In his brieP, Perez suggests

that had trial counsel asked the very next logical question, i.e. whether she received any

benefit from testifying, that Perez would either have been acquitted or would not have

received a death sentence. Saying so does not make it so, and speculation does not equate

with prejudice.

4. Trial counsel was not required to request a accomplice credibilityinstruction, where Debra Smith Perez was not an accomplice tothe charged crimes.

Trial counsel were under no obligation, constitutionally or logically, to request an

accomplice credibility instruction concerning Debra's testimony. One good reason is that

Debra was not an "accomplice" to robbery, nor was she an "accomplice" to attempted

murder, nor was she an "accomplice" to murder. See ORC 2923.03. Debra was neither

42

charged with the underlying offenses nor with complicity (robbery of the Beverage Oasis

and the Do Drop Inn, the attempted murder of Conley, and the murder of Johnson).

Granted, Debra could have likely been charged with something concerning the gun

transactions made on behalf of a known felon. Debra bought guns for her felon husband.

Debra sold guns for her felon husband. Debra knew her felon husband was pulling armed

robberies. Debra knew her felon husband killed a man during a robbery. And Debra

chose her son, Robert Smitli, over her felon husband when Robert revealed his troubling

secret to the school counselor. After her son spilled the beans, and knowing Perez would

very likely stay locked up for his theft offenses, Debra readily helped police see that

Perez would be locked up for good.

Debra did not help Perez rob the Beverage Oasis. Debra did not help Perez

attempt to kill Clifford Conley. Debra did not help Perez rob the Do Drop Inn. Debra did

not help Perez kill Ronald Johnson. Therefore, even had defense counsel requested a

specific charge concerning accomplice credibility, Perez would not entitled to the

instruction, because Debra was not an "accomplice" to the crimes before the jury. State

v. Howard, 1999 Ohio 848 (3`d Dist. Ct. App. 1999). Also, Perez was given a general

charge concerning witness credibility.' See Trial Transcript, Vol. 9, pgs. 1666-1667. In

1 "You, as the jurors, are the sole judges of the witnesses, and the weight of the evidence.The testimony of all the witnesses is to be weighed by the same rules. To weigh theevidence, you must consider the credibility and reliability of the witnesses. You shouldapply the tests of truthfulness and reliability which you apply when acting upon the mostimportant of your own affairs. These tests include the appearance of each witness whiletestifying; their manner of testifying; their reasonableness of their testimony; theopportunity the witnesses had to see, hear, and know the things about which he or shetestified; the witnesses' lack of memory; their frankness or lack of it; their intelligence;and interest and bias, if any; together with all the facts surrounding the circumstances ofthe testimony.

43

fact, this Court has previously held that a trial court is not required to give a special

instruction concerning accomplice credibility, when the requested instruction was

already covered by the court's general charge. State v. Sneed, 63 Ohio St.3d 3, 8, 584

N.E.2d 1160, 1166 (1992). Where Debra was not an accomplice, and her credibility

could be assessed under the charge given by the trial Court, Perez fails to state a viable

claim of ineffective counsel.

Perez confessed to the murder. I-le implicated his male associate in that crime, not

Debra Smith Perez. Perez suffered no prejudice from the lack of an accomplice

instruction, because Debra was not an accomplice.

5. Perez should explain in his rcply brief to this Court why counsel

obtained his prison records, and why counsel skipped getting apre-sentence investigation.

Perez's counsel were successful in preventing the jury from learning Pcrez was a

violent career criminal who had recently attempted to escape from prison. They did so by

keeping the mitigation case brief, by skipping a pre-sentence investigation, and skipping

testimony froin their psychologist, Dr. Smalldon. Perez should explain to this Court in

his reply brief why his trial counsel obtained a court order to get his prison records. Perez

should explain to this Court in his reply brief, why Ray Paris did not testify about Perez's

life after age 12. Perez should explain to this Court in his reply brief whether he faults

trial counsel for not asking for a pre-sentence investigation, and if not, why not? The

point to be made is that the mitigation case was sparse because it had to be. Otherwise,

the jury would have found out that Perez was a violent career criminal with a recent

Applying these tests, you will assign to the testimony of each witness the weightwhich you deem proper." (Trial Transcript, Vol. 9, pgs. 1666-1667.)

44

escape attempt. And that, Perez knows full well, would not have sat well with the jury.

His implication to this Court that counsel dropped the ball on mitigation is disingenuous,

and the record, even as presently constituted, proves that fact.

6. Trial counsel has no constitutional obligation to object to theprosecutors' proper comments and trial tactics.

Because the prosecutor did not engage in misconduct, trial counsel had no

constitutional obligation to object. State v. Newton, 108 Ohio St. 3d 13, 33, 840 N.E.2d

593, 615 (2006). Furthermore, Perez engages in bare speculation regarding prejudice

arising from innocuous commentary from the prosecutor. Assuming for the sake of

argument the prosecutor engaged in misconduct, Perez fails to make any showing of

prejudice where "one is left with pure speculation on whether the outcome of the trial or

the penalty phase could have been any different." Baze v Parker, 371 F.3d 310, at 322

(6t" Cir. 2004).

7. Trial counsel has no constitutional obligation to object to propcrjury instructions.

Because the trial court's instructions were proper, trial counsel had no

constitutional obligation to object. State v. Cunningham, 105 Ohio St. 3d 197, 217, 824

N.E.2d 504, 526 (2004). Furthemiore, Perez engages in bare speculation regarding

prejudice arising from "by the book" jury instructions. . Assuming for the sake of

argument that the "by the book" jury instructions were somehow flawed, Perez fails to

make any showing of prejudice where "one is left with pure speculation on whether the

outcome of the trial or the penalty phase could have been any different." Baze v Parker,

371 F.3d 310, at 322 (6th Cir. 2004).

45

8. Even when trial counsel alleged errors are judged under acumulative standard, Perez claims still lack merit.

Nothing plus nothing equals nothing. There are no valid subclaims of inefPective

assistance, and the cumulative effect of invalid subclaims is the same as the individual

effect of a single invalid subclaim, which is nothing.

46

Response To Proposition Of Law No. 7: Where Prospective Juror DirlamInsisted He Would Follow The Law Regarding Capital Scntencing, HisEquivocation On Individual Mitigating Factors Did Not Render HimChallengeable For Cause, And Defense Counsel Wisely Exercised APeremptory Challenge To Prevent Dirlam From Being Seated As A Juror

Although prospective juror Dirlam repeatedly stated he would follow the law and

take all the circumstances into account in sentencing, defense counsel insisted on

Dirlam's agreement that a defendant's "background" or "remorse" would carry the day.

Dirlam did not agree, but nevertheless promised to follow the law given by the judge.

The standard by which the law would exclude a prospective capital juror is whether they

would automatically vote for death, or automatically vote for life, regardless of what the

judge would tell them they should consider. Prospective juror Dirlam met this criteria for

inclusion, where Dirlam repeatedly sworc he would deliberate under the rules given by

the judge. By probing questions, defense counsel learned that prospective juror Dirlam

didn't think "remorse" was a viable mitigating factor, and challenged that juror for cause.

The trial Court properly overruled that challenge, because the constitution does not

require prospective capital jurors to assent to the validity of any one particular mitigating

factor. There is no error in refusing to exclude a prospective juror who meets

constitutional criteria to sit on a capital jury.

Perez was found guilty of aggravated murder, and sentenced to death, by a fair

and impartial jury. Perez claims in his scventh proposition error when the trial judge

refused to strike for cause potential juror Ronald Dirlam, who stated that he could follow

the judge's instructions of law and weigh the factors the judge gave him with concern to

sentencing (Trial Transcript Vol. 2, pgs. 268-285). After the refusal to strike for cause,

defense counsel wisely exercised a preemptory challenge to strike Dirlam, since Dirlam

47

was not strong on "remorse" as a mitigating factor. Far from stating an error, Perez's

Proposition of Law No. 7 shows nothing more than a common dynamic in the selection

of a capital jury. Because prospective juror Dirlam repeatedly promised he would follow

the law regarding capital sentencing, Dirlam was entitled to be a capital juror, and Perez's

claim is without merit

The standard for deteimining whether a prospective juror should be excluded for

cause due to his or her views on capital punishment is "whether the juror's views would

prevent or substantially impair the performance of his duties as a juror in accordance with

his instructions and his oath." Wainwrighl v. Witt, 469 U.S. 412, 414 (1985). According

to the United States Supreme Court, a trial court judgment concerning whether a juror

should be excluded for cause is owed deference by reviewing courts because "[t]he trial

court is in a superior position to assess demeanor, a factor critical in assessing the attitude

and qualifications of potential jurors" Uttecht v. Brown, U.S. -, 127 S. Ct. 2218

(2007) ("Leading treatises in the area make much of noriverbal communication. See, e.g.,

V. Starr & M. McCormick, Jury Selection 389-523 (3d ed. 2001); J. Frederick, Mastering

Voir Dire and Jury Selection 39-56 (2d ed. 2005)."). "(A) trial courl's ruling on a

challenge for cause will not be disturbed on appeal unless it is manifestly arbitrary and

unsupported by substantial testimony, so as to constitute an abuse of discretion" State v.

Williams, 79 Ohio St. 3d 1, 17-18,679 N.E.2d 646, 654 (1997). Even when a juror shows

a predisposition in favor of imposing the death penalty, a trial judge does not abuse his

discretion in denying a challenge for cause if the juror states that he will follow the law

and the court's instructions. State v. Jackson, 107 Ohio St. 3d 53, 61, 836 N.E.2d 1173,

1188 (2005); State v. Mack, 73 Ohio St. 3d 502, 503, 653 N.E.2d 329 (1995).

48

In the case at hand, the trial court fully evaluated whether potential juror Dirlam's

view of the death penalty would have prevented or substantially impaired the

performance of his duties as a juror and properly arrived at the conclusion that it would

not. The court specifically asked Dirlam, "Would your views on the death penalty either

prevent or substantially impair your ability to follow the law in deciding your verdict

during any sentencing phase of this case?" Dirlam responded in the negative. (Trial

Transcript, Vol. 2, pg. 270). Furthermore, the prosecutor specifically asked Dirlam,

"Irregardless of your personal opinion, will you be able to put your personal opinion

aside and follow the instructions of the law and weight the factors that the Judge gives

you and follow the instructions on how you are supposed to weigh that. Do you think

you can do that? Dirlam answered in the affirmative (Trial Transcript Vol. 2, pg. 274).

Therefore, the standard for excluding a potential juror for cause, as laid out by the

Supreme Court in Witt, was not met and the trial court lacked grounds to properly

exclude Dirlam for cause.

"Deference must be paid to the trial judge who sees and hears the juror." State v.

Cornwell, 86 Ohio St. 3d 560, 564, 715 N.E.2d 1144, 1149 (1999). This Court should

give deference to the trial court's opinion that Dirlam should not have been excluded for

cause because the trial court was in a superior position to assess potential juror Dirlam's

demeanor, a critical factor in assessing his attitude and qualifications. The trial court was

in the unique position of being able to evaluate Mr. Dirlam's mannerisms, tone of voice,

and nonverbal communication when he answered questions of bias for the prosecutor and

for the court itself. Reviewing courts are at the disadvantage of only being able to

detei7nine bias based on the typed words of the transcript. Therefore, as the Supreme

49

Court requires in Uttecht, this Court should give deference to the trial court's decision

that Dirlam should not have been excluded for cause, especially where grounds for

exclusion are not shown by the record.

Even assuming for the sake of argument that potential juror Dirlam showed a

predisposition in favor of iinposing the death penalty, the trial judge did not abuse his

discretion in denying the challenge for cause. This is so because Dirlam clearly stated

that he would follow the law and the court's instructions. While Dirlam stated that he

was not opposed to the death penalty in any way and would be able to vote for such a

sentence, he also affirmatively stated that he would follow the law that the judge

provided and follow the instructions that the judge gave (Trial Transcript Vol. 2, pg.

274). Therefore, the trial judge in no way abused his discretion for denying the challenge

for cause, simply because Dirlam could vote for capital punishment.

According to the United States Supreme Court, Perez's argument is moot with

concem to a constitutional violation, even if it were to be incorrectly determined that

Dirlam should have been dismissed for cause. This is so because the defense used a

preemptory strike to excuse Dirlam who consequently never sat on Perez's jury. In

United States v. Marlinez-Salazar, 528 U.S. 304, 307 (2000), the Supreme Court held

that if the defendant elects to cure a trial judge's error not to dismiss a potential juror for

cause by exercising a preemptory challenge, and is subsequently convicted by a jury on

which no biased juror sat, he has not been deprived any rule-based or constitutional right.

In other words, where there is no claim that a juror who sat should have been excluded

under Wainwrighl, there is by definition no viable claim of constitutional error.

50

In Perez's case, defense counsel elected to cure what he believed to be the trial

judge's error by using a preemptory strike to exclude Dirlam from sitting on the jury

(Trial Transcript, Vol. 4, p. 717-718). Subsequently, Perez was convicted by a jury on

which Dirlam did not sit. In evaluating an impartial jury claim, an appellate court's focus

must be on those jurors who actually sat during trial and deliberated. State v.

Cunningham, 105 Ohio St. 3d 197, 202, 824 N.E.2d 504, 514 (2004). Therefore, Perez

was not deprived any rule based or constitutional right, including his constitutional right

to a fair and impartial sentencing jury.

In conclusion, Perez was not denied his right to a fair and impartial sentencing

jury. This is so because the trial court fully evaluated whether potential juror Dirlam's

view of the death penalty would have prevented or substantially impaired the

performance of his duties as a juror. Dirlam's views would not, so the trial court did not

dismiss Dirlam for cause. Furthermore, Perez's argument is moot with concern to a

constitutional violation, even it was incorrectly determined should have been dismissed

Dirlam for cause, because the defense used a preemptory strike to excuse Dirlam who

never sat on the jury. Therefore, Perez's claim that he was denied his right to a fair and

impartial sentencing jury is without merit.

51

Response To Proposition Of Law No. 8: Beyond The Claim Being Non-Justicable Due To Waiver, Wrongdoing On Collateral Matters Does NotMandate A Complicity Instruction, And The Other Acts Instruction WasStraight Out Of OJI And Properly Prohibited Consideration On FactorsOther Than "Motive, Intent, Purpose, Or Plan"

Perez's counsel did not request a complicity instruction in respect to Debra Smith

Perez for good reason: she was not charged with any crimes, and furthermore she was not

complicit in the robbery of the Beverage Oasis, the attempted murder of Conley, the

robbery of the Do Drop Iim, and the murder of Johnson. Debra Smith Perez committed

criminal wrongdoing in making gun transactions on behalf of a known felon, and she was

morally wrong in maintaining silence despite knowing Perez was a serial robber and had

killed an innocent person. These factors do not mandate a complicity instruction

regarding robbery and murder that was pulled off solely by Perez and his male associate.

Good defense counsel do not make liivolous requests to the court, and Perez's

counsel followed that rule. Consequently, Perez's present grievance in this regard is

waived, because his experienced trial counsel did not request a complicity instruction

where it was not warranted. Since Perez fails to articulate grounds to be relieved from

this waiver, let alone even acknowledge that no request was made for a complicity

instruction, his claim of should be rejected on the basis of waiver. State v. Miller, 105

Ohio App. 3d 679, 691, (1995); State v. Walker, 66 Ohio App. 3d 518, 522, (1990).

Regarding the other acts instruction, the trial court followed the book and

instructed the jury that the evidence was admitted for a limited purpose, and that the

evidence may not be considered for any other purpose. See Trial Transcript Vol. 9, pg.

1669. Perez claims the trial Court was obligated to enumerate the exclusions. In other

words, instructing the jury that the other acts evidence was admitted for a "limited

52

purpose" is not good enough. Instructing the jury that "You thus may not use this

evidence for any other purpose" is not good enough. According to Perez, the instruction

is required to enumerate factors for what the evidence can not be used. No suchxequest

was made below, and for good reason. Neither the law nor logic requires an enumeration

of what can't be done.

The other acts instruction is word for word identical to that given in Ohio Jury

Instructions, Vol. 4, Section 402.61 (electing alternative (b)). It is consequently no

surprise that defense counsel did not request what Perez now claims was error to exclude.

Perez has waived this claim for good reason, and that is because the claim has no basis in

law. This Court should deny Perez's claim because it is invalid, and because it has been

waived. State v. Miller, 105 Ohio App. 3d 679, 691, (1995); State v. Walker, 66 Ohio

App. 3d 518, 522, (1990).

53

Response To Proposition Of Law No. 9: Capital Specifications Of FelonyMurder And Course Of Conduct Do Not Merge, Especially Where TheCourse Of Conduct Crime and the Felony Murder Crime Were Not The"Same Act"

This Court has held that the course of conduct specification, ORC 2929.04(A)(5),

does not merge with a felony murder specification, ORC 2929.04(A)(7), at least under

circumstances like those at bar where the Beverage Oasis and Do Drop Inn crimes were

separate events, albeit linked by a course of conduct. Moreover, the felony murder

specification relates only to the Do Drop Inn, and could hardly be said to merge with the

separate events at the Beverage Oasis. In the same vein, it can hardly be said that the

Beverage Oasis and Do Drop Inn crimes are the "same act." In denying merger, the trial

Court appropriately ruled under prior cases of this Court. State v. Jenkins, 15 Ohio St.

3d 164 (1984); State v. Spisak, 36 Ohio St. 3d 80 (1988); State v. Garner, 74 Ohio St. 3d

49 (1995). Perez's contrary contention lacks merit.

Response To Proposition Of Law No. 10: Beyond Being Non-Justicable DueTo Waiver, None Of The Aggrieved Conduct Is Even Arguably Improper

The prosecutor did not engage in misconduct during either phase of Perez's

capital murder trial. The test for prosecutorial misconduct is whether the conduct was

improper and, if so, whether it prejudicially affected substantial rights of the defendant.

Stale v. Braden, 98 Ohio St.3d 354, 368 (2003); Slate v. Hessler, 90 Ohio St.3d 108, 125,

(2000); and State v. Smith, 14 Ohio St.3d 13, 14, (1984). The touchstone of this analysis

is the fairness of the trial, not the culpability of the prosecutor. State v. Noling, 98 Ohio

54

St.3d 44 (2002); Smith v. Phillips, 455 U.S. 209, 219 (1982). Perez had a fair trial, and

the prosecutor did nothing wrong.

Furthei-more, defense counsel did not object to any statements made in closing

arguments or mitigation, and therefore waived all but plain error. State v. Slagle, 65 Ohio

St.3d 597, 604 (1992). Plain error does not exist unless it can be said "that but for the

error, the outcome of the trial would clearly have been otherwise." See, e.g., State v.

Wogenstahl, 75 Ohio St.3d 344, 357, 662 (1996). There is no error, let alone plain error.

1. The prosecutor did not vouch for police officers.

Perez first alleges misconduct by "vouching for the police officers". (Appellant

Brief, pg. 109.) However, in the first alleged instance of vouching, the prosecutor was

explaining that the police fully investigated the Beverage Oasis crime scene, in an

attempt to head off unrealistic "CSI" expectations. See A Study ofJuror Expectations and

Demands Concerning Scientiic Evidence: Does the "CSI Effect" Exist?, 9 Vand. J. Ent.

& Tech. L. 331 (2006). In the second alleged instance of vouching, the prosecutor was

referring to compelling nature of the recorded conversation between Perez and his wife,

Debra. The prosecutor was reminding the jury of the overwhelming evidence of guilt, as

patently displayed by Perez's own words. The prosecutor was not vouching for police,

but was pointing the jurors to overwhelming evidence of guilt. The prosecutor vouched

for no one, and Perez's claim to the contrary is contradicted by the record.

The prosecutor referred to police officers in a general sense, and did so in context

of the hard work behind a thorough investigation. This is not improper.

55

2. The prosecutor's closing argumcnt was fair commentary on the evidence.

A review of the closing argument here does not establish a case of prosecutorial

misconduct. Regarding supposed misconduct, Perez claims that it was improper for the

prosecutor to argue that Perez was not truly remorseful for the murder of Johnson. This

is fair commentary. This Court has held, "the prosecution is entitled to 'some latitude

and freedom of expression' in summation. State v. Woodards 6 Ohio St. 2d 14, 26, 35

(1966) Moreover, isolated comments by a prosecutor are not to be taken out of context

and given their most damaging meaning. Rather, a reviewing court must review the

closing argument in its entirety to determine if prejudicial error occurred. State v.

Noling, 98 Ohio St.3d 44 (2002). A review of the closing argument here does not

establish a case of prosecutorial misconduct. The closing argument was fair commentary

based on reasonable inferences from the evidence.

3. The prosecutor did not improperly present other acts evidence.

The prosecution did not improperly introduce evidence that Perez engaged in

other bad act robberies. It is hardly misconduct to present evidence expressly authorized

by the trial Court.

Furthermore, presentation of evidence concerning Howard is relevant and

appropriate. This is because the evidence shows Howard was the "other guy" at the

Beverage Oasis with Kerry Perez, and that Perez's attempted murder of the owner of the

store was a reaction to Howard being shot in the buttocks. Moreover, where both Perez

and Howard wore masks, and it was Perez and not Howard who shot at Clifford Conley,

the prosecution was entitled to distinguish between the two with the evidence regarding

Howard.

56

Clifford Conley could not identify the robbers, but could say for sure that only

one of the two robbers actually shot at him. Both had shotguns, but only one robber

blasted the gun. The Howard evidence corroborated the fact that it was Perez, not

Howard, who attempted to kill Clifford Conley. Without the Howard evidence, Perez

might have been tempted to argue that it was the "other guy" who shot at Conley.

Therefore, the evidence was most relevant to the crime of attempted murder of Conley, as

well as the course of conduct specification regarding the killing or attempt to kill two or

more. The State alleged and proved beyond a reasonable doubt that it was Perez who

killed Johnson, and Perez who attempted to kill Conley. Part of this proof was that it was

not the "other guy" who shot at Conley. The Howard evidence was thus relevant to the

case and properly submitted by the prosecution.

4. The prosecutor's argument by analogy did not lessen the burden of proof.

The prosecutor did not use improper argument to lessen the burden in proof

required for the course of conduct specification. The prosecutor explained the meaning

of the course of conduct by analogy to an ordinary citizen going to work. The prosecutor

said:

Most of you are employed or work. I mean your job is yourcourse of conduct. If you're a mailman, you get up, you get yourbag, and you put mail in the prescribed addresses' mailbox. That isa course of conduct. That's what you do. If you're a truck driver,you take a load from one place to another, you drop it off. That isyour course of conduct. You do this on a regular basis. This is howyou support yourself. It's a course of conduct. And that's what thisDefendant does. He robs. That's his course of conduct.

Say, for instance, you think in terms of your job. Somepeople carry a hard hat because they need a hard hat. Some peoplecarry hammers and nails. Some people carry books because theyteach from these books or they instruct from these books. Somepeople wear a uniform and that identifies them as an employee too,

57

and this is part of it. This is what he uses as part of his uniform togo to work.

Trial Transcript, Vol. 9, pg. 1659.

The comments showed, by analogy, that Perez engaged in a course of

conduct by dressing the same and using the same guns and techniques as does a

normal worker in going to work by putting on a uniform, using the appropriate

tools, and applying the appropriate techniques in his job. Argument by analogy

does not lessen the burden of proof for the offense.

The prosecutor fairly commented that Perez's callous comment after the murder

of Johnson was pertinent to Perez's purpose in shooting at Johnson. The evidence was

that Perez told Debra and stepson Robert that he "had to merc an M F'er," and that Perez

did so in response to the Johnson calling him a disparaging name. (Trial Transcript,

Vol. 9, pg. 1628). This was fair commentary to show that Perez had the purpose to kill

when he made a demand of the victim, and when the victim failed to comply with the

demand. A bold boasting statement that "I had to mere and M F'er" says much more

than, for example, "By golly, my trigger finger slipped and I accidentally shot that poor

fellow." Perez's statement that "I had to merc an M F'er" tended to show he killed

Johnson on purpose, as opposed to accidentally. This is fair commentary. Therefore,

Perez's claim that these statements by the prosecutor were improper is without merit.

5. The prosecutor did not make improper sentencing phase argument aboutthe aggravating circumstances, and did not mischaracterize mitigationevidence.

Perez has but three instances of so-called improper sentencing phase argument by

the prosecutor, and each one of the three is obviously proper and fair commentary. Perez

first claims that because the prosecutor stated in guilt phase opening statement that Perez

58

was "showing some remorse" during his videotaped confession, the prosecutor was

thereby prevented from any sentencing phase commentary regarding whether Perez's

"remorse" was a mitigating factor. This mitigation phase commentary was directly and

properly responsive to Perez's mitigation phase argument about remorse. 'fhe aggrieved

commentary was completely proper. See Trial Transcript, Vol. 5, pg. 783 (During Perez's

interrogation, police were convincing Perez he was "showing some remorse."). See also

Trial Transcript, Vol. 11, pgs. 1762-1763. (Commentary that the facts show Perez was

not remorseful).

Perez next claims that the prosecution was wrong to say the course of conduct

specification was entitled to "incredible weight", because that commentary was not

responsive to Perez's mitigation evidence and argument. This contention lacks support in

law or logic, and if anything, stands as confirmation that Perez has nothing remotely

approaching mitigation phase misconduct.

Lastly, Perez claim the prosecutor was not entitled to comment that it was Perez

who did the shooting (thus making the decision to kill or not kill) while IIoward would

go for the cash register. Which of the two did the shooting (Perez and not Howard)

speaks directly to the course of conduct specification (killing or attempting to kill two or

more) and is completely proper commentary.

Response To Proposition Of Law No. 11: Beyond The Claim Being Non-Justicable Due To Waiver, Perez's Death Sentence Is Not Arbitrary SimplyBecause Non-Triggerman Howard Received A Different Sentence For TheBeverage Oasis Robbery And Debra Smith Perez Was Not CriminallyCharged For Her Gun Transaetions

The law does not mandate that compatriots in crime are to be punished only in

accordance with the least culpable party. Perez advances the astounding contention that

59

his death sentence is invalid because Debra Smith Perez is "morally culpable" for his

wrongdoing, and if she didn't get a death sentence, neither should he. Perez contends that

even though Howard shot no one, and no one was hurt or killed at the Beverage Oasis, if

Howard didn't get a death sentence, neither should he. This is a frivolous claim without

an arguable basis in law and should be rejected. Moreover, since this claim was never

made below, this Court should deny Perez's claim because it is invalid, and because it

has been waived. State v. Miller, 105 Ohio App. 3d 679, 691, (1995); State v. Walker,

66 Ohio App. 3d 518, 522, (1990).

Response To Proposition Of Law 12: Beyond Being Non-Justicable Due ToWaiver, The Reasonable Doubt Instruction Was Straight Out Of OJI AndUndoubtedly Proper

The reasonable doubt instructions aggrieved by Perez was straight out of OJI. See

4 OJI 403.50; ORC 2901.05(D). State v. Van Gundy, 64 Ohio St. 3d 230, 235-236 (1992).

Not surprisingly, Perez's trial counsel did not object to the instruction. A claim never

made below is waived, and this Court should reject Proposition Of Law No. 12 on that

basis. State v. Miller, 105 Ohio App. 3d 679, 691, (1995); State v. Walker, 66 Ohio App.

3d 518, 522, (1990).

Response To Proposition Of Law No. 13: This Court Has Repeatedly HeldOhio's Capital Sentencing Law Is Constitutional

Perez's claim that the Ohio capital sentencing scheme is unconstitutional should

be summarily rejected as was done in State v. Treesh, 90 Ohio St. 3d 460, 463, footnote 1

(2001).

60

CONCLUSION

For the reasons expressed, Perez's claims of error lack merit. Accordingly, this

Court should affirm the conviction and sentence imposed by the Clark County Court of

Common Pleas. Furthermore, this Court should independently determine that a sentence

of death is appropriate.

: 'l L^ ,STEPf3EN A. SCHUMAKER* (0014643)*Counsel ofRecordClark County Prosecutor50 E. Columbia StreetP.O. Box 1608Springfield, OH 45502(phone) 937-521-1770(fax) 937-328-2657COUNSEL FOR APPELLEESTATE OF OHIO

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing Merit Brief of Appellee State of

Ohio has been delivered via hand-delivery to Pamela Prude-Smithers, counsel of record,Assistant State Public Defender, Office of the Ohio Public Defender, 8 East Long Street,11`h Floor, Columbus, Ohio 43215-2998, on this the 25th day of June, 2007.

- ,,

STKPHEN A. SCHUMAKER (0014643)Ckifrk County Prosecuting AttorneyCounsel Of Record For Appellee

61

APPENDIX A

TRIAL TRANSCRIPT SUMMARY

State v. PerezClark County Court Of Common Pleas

Case No. 03-CR-1010Pre-Trial, Trial And

Miti2ation Transcript Summary

Law Enforcement Witnesses

Combs, Michael: Deputy, CCSO. Foundation for jail calls recordings &spousal testimony. Vol. 7, pgs. 1243-1246.

DeWine, Daniel: Detective, SPD. Lead detective. Vol. 5, pgs. 914-921; Vol.7, pgs. 1248-1303; Vol. 8, pgs. 1324-1508.

Eggers, Barry: Sergeant, SPD. Vol. 7, pgs. 1183-1196. Non-custodialstatement of Perez.

Estep, Douglas. Detective, SPD. Vol. 3, Motion To Suppress, pgs. 297-306.Foundation for recording of telephone call between Perez and his wife.

Flores, Jeffrey: Sergeant, SPD. Vol. 3, Motion To Suppress, pgs. 306-349.Transcript of Motion To Suppress and to Sever July 5, 2005, pgs. 31-43.Trial Transcript Vol. 9, pgs. 1548-1558. Foundation for recordings &

spousal testimony.

Garman, Russell: Lieutenant, CCSO Vol. 2, Motion to Suppress, pgs. 265-268. Trial Transcript Vol. 7, pgs. 1232-1240. Foundation for recordings &spousal testimony.

Haytas, Michael: Sergeant, SPD. Vol. 5, pgs. 828-863. Recalled, Vol. 6,pgs 964-966. Beverage Oasis crime scene.

Hicks, Darwin: Detective, SPD. Vol. 1, Motion to Suppress, pgs. 13-155,Vol. 2, Motion to Suppress, pgs. 157-264. Vol. 6, pgs. 970-976; Vol. 9, pgs.1558-1564. Beverage Oasis investigation & foundation for recording ofPerez & Howard.

1

Lemen, John: Deputy, CCSO. Vol. 3, Motion To Suppress, pgs. 290-296;Trial Transcript Vol. 7, pgs. 1241-1243. Foundation for recordings &spousal testimony.

Linger, Matthew: 911 Operator. Vol. 5, pgs. 817-825. Beverage Oasis.

Moos, Brad: Lieutenant, SPD. Vol. 2, Motion To Suppress, pgs. 279-285.Trial Transcript, Vol. 9, pgs. 1540-1543. Foundation for recordings.

Parsons, Mark: SPD. Vol. 6, pgs. 1090-1119. Do Drop Inn crime scene.

Hurd, Jr., Paul: SPD. Vol. 6, pgs. 1081-1087. First responder, Do Drop Inn.

Rapp, Dave: FCSO. Vol. 1, Motion To Suppress, pgs. 7-13. Commander ofthe Clark County Jail.

Rude, Ronald: Deputy, CCSO. Vol. 7, pgs. 1180-1183. Non-custodial

statements of Perez.

Shepherd, Timothy: Forensic criminalist, SPD. Vol. 7, pgs. 1150-1179.Gunshot residue, Do Drop Inn.

Smith, Robert L.: Springfield Fire EMT. Vol. 6, pgs. 1087-1090. Firstresponder, Do Drop Inn.

Sperry, Tad: Deputy, CCSO. Vol. 2, Motion To Suppress, pgs. 269-278.Trial Transcript, Vol. 7, pgs. 1246-1247. Foundation for recordings &spousal testimony.

Steinmetz, Jeffrey: SPD. Vol. 5, pgs. 909-913. Photo identification of CecilHoward.

Walls, William: State Parole officer. Vol. 6, pgs. 966-969. Photoidentification of Cecil Howard.

Werner, Laurn: Clark County Information Systems. Vol. 9, pgs. 1546-1548.Foundation for recordings.

2

Woodruff, Anne: Clark County Information Systems. Vol. 2, Motion ToSuppress, pgs. 285-287, Trial Transcript Vol. 9, pgs. 1543-1545. Foundation

for recordings.

Forensic Science Witnesses

Mark, William: BCI firearms examiner. Vol. 5, pgs. 940-947. BeverageOasis pistol.

Roggenbeck, Robin: BCI fingerprint examiner. Vol. 5, pgs. 947-956.Beverage Oasis shotgun.

Williams, Heather: BCI firearms examiner. Vol. 9, pgs. 1574-1587. Bullet

from Do Drop Inn.

Medical Witnesses

Stewart, Dr. Robert: Deputy Clark County Coroner. Vol. 6, pgs. 1121-1147.Do Drop Inn victim autopsy.

Trinidad, Dr. Salvador: Radiologist with Community Hospital. Vol. 5, pgs.930-939. Identification of injuries to Cecil Howard from the Beverage Oasis

robbery.

Wiebeck, Mary Ann: Radiology assistant at Community Hospital. Vol. 5,pgs. 922-929. Identification of injuries to Cecil Howard from the BeverageOasis robbery.

Gun Sales Witnesses

Awad, Ramy: Manager, Springfield Wal-Mart. Vol. 5, pgs. 790-792.Shotgun sale to Debra Perez.

Beloff, Laurence: Pawn shop proprietor. Vol. 5, pgs. 796-799. Revolver sale

to Debra Perez.

Carpenter, Pamela: Pawn shop employee. Vol. 5, pgs. 800-803. Revolver

sale to Debra Perez.

3

Daly, Steve: Flea market seller. Vol. 5, pgs. 803-808. Traded two High Point9 mm pistols for the 357 revolver with Debra Perez.

Hart, Angela: Employee of Wal-Mart. Vol. 5, pgs. 792-795. Shotgun sale to

Debra Perez.

Jarris, Stanley: Gun purchaser. Vol. 5, pgs. 808-811. Bought the revolvertraded in by Debra Perez.

Remmers, George: Stepfather of Sherry Alspaugh. Vol. 5, pgs. 811-817.Loaned Beverage Oasis shotgun to Perez.

Perez Friends & Family

Alspaugh, Sherry: Has a daughter Lindee with Perez. Vol. 9, pgs. 1537-1540Identified letter from Perez and Perez statements about Do Drop Inn.

Alspaugh, Lindee: Perez's daughter with Sherry. Vol. 7, pgs. 1228-1232.

Statement about Do Drop Inn.

Copeland, James: Guidance counselor at Springfield City Schools. Vol. 7,pgs. 1196-1202. Interaction with Debra Perez and stepson Robert Smith

regarding Do Drop Inn.

McGhee, John: Friend of Kerry Perez. Vol. 7, pgs. 1303-1315. Identificationof Cecil Howard & Perez statements about Do Drop Inn.

Smith, Debra Perez: Ex-wife of Kerry Perez. Vol. 8, pgs. 1508-1531. Gunpurchases, treatment of Perez's gunshot wound from Beverage Oasisrobbery, and Perez statements about Do Drop Inn.

Smith, Robert: Son of Debra Perez, stepson to Kerry Perez. Vol. 7, pgs.1204-1225. Identification of Cecil Howard, Perez statements about Beverage

Oasis & Do Drop Inn.

I9`h Hole Bar Witnesses (June 7, 2002)

Holmes, Art: Vol. 6, pgs. 1009-1015. Owner of 19`" Hole Bar.

4

Beveraj!e Oasis Witnesses (June 22, 2002)

Atchison, Christopher: Worker at Beverage Oasis. Vol. 5, pgs. 864-876.

Conley, Clifford: Owner of the Beverage Oasis. Vol. 5, pgs. 877-908.

Little, Donald: Employee of the Beverage Oasis. Vol. 6, pgs. 977-993.

Do Drop Inn Witnesses (March 5, 2003)

Allen, Jill: Bartender at the Do Drop Inn. Vol. 6, pgs. 1037-1056.

Delawder, Larry: Owner of the Do Drop Inn. Vol. 6, pgs. 1069-1078.

DePriest, Cindy: Bartender at the Do Drop Inn. Vol. 6, pgs. 1057-1067.

Lantern Bar Witnesses (September 2, 2002)

Demmy, Charles ("Monty"): Employee of the Lantern Bar. Vol. 6, pgs.

1026-1030.

Demmy, Rosemary: Employee of the Lantern Bar. Vol. 6, pgs. 1023-1026.

Nite Owl Tavern Witnesses (May 29, 2002 and September 11, 2002)

Boyd, Rhonda: Bartender at the Nite Owl Tavern. Vol. 6, pgs. 995-1000.

Mansfield, Danny: Owner of the Nite Owl Tavern. Vol. 6, pgs. 1001-1005.

Smith, Gina: Patron of the Nite Owl Tavern. Vol. 6, pgs. 1030-1035.

SuQarbaker's Bar Witnesses ( June 19, 2002)

Bruce, Ricky: Patron of Sugarbaker's Bar. Vol. 6, p. 1021-1023.

Mercer, Donald : Owner of Sugarbaker's Bar. Vol. 6, pgs. 1016-1021.

5

Pre-Trial Hearin2s Summary

Defense Motion To Suppress Perez Statements To Debra &Police: Transcript References: Motion To Suppress Hearing, August 16-182004, Volumes I through 3. Document References: Doc 50, DefendantMotion To Suppress 05-19-04; Doc 54 Defendant Second Motion ToSuppress 08-13-04; Doc 91 Defendant Post-Hearing Brief In Support OfSuppression 11-08-04; Doc 92, State's Memorandum Contra Suppression11-18-04; Doc 93, Order Denying Suppression 12-09-04; Doc 94, DefendantMotion To Reconsider Order 12-28-04; Doc 117, Order DenyingSuppression 08-24-05; Doc 122, Order Denying Suppression 08-26-05)

Captain Dave Rapp: Vol. 1, Motion to Suppress, pgs. 7-13. Deputywith Clark County Sheriff's Office in charge ofjail operations. For visitationwith outside visitors, inmates are placed in a visitation room. The is a glasspartition separating the inmate and the visitor. Conversation between theinmate and the visitor is by a telephone type receiver. During visitation, theinmate is in the visitation room with the metal door being shut. The metaldoor has an open screen type window in the door. The inmate can be heardthrough the screen by deputies standing outside the door. Vol. 1, Motion toSuppress, pages 8-13.

Detective Darwin Hicks: Vol. 1, Motion to Suppress, pgs. 13-155,Vol. 2, Motion to Suppress, pgs. 157-264. Detective, Springfield Police. InOctober 2003, the principal of Keifer Alternative school contacted police tosay that a student had information regarding a homicide. Detective Hicksand Detective Estep (Vol. 2, Motion to Suppress, pg. 248) responded tospeak with student Robert Smith, the stepson of Kerry Perez. Smith toldpolice that Perez committed the Do Drop Inn homicide. Smith's mothercame to the school and information was provided about the gun used in thehomicide. Detective Hicks and Detective DeWine later recovered that gun,and traced the initial sale to Debra Perez. Kerry Perez at this time wasincarcerated in the Clark County Jail on unrelated charges. Debra Perezagreed to visit with Kerry Perez while police taped the conversation.Arrangements were made with the Sherriff's staff for recording the visitationwhich took place on October 24, 2003. Detective Hicks identified State'sSuppression Hearing Exhibit 1 as being the tape provided by jail staff,where Detective Hicks recognized those speaking on the tape as Kerry andDebra Perez. Vol. 1, Motion To Suppress, pgs. 13-20.

6

Jail visitation conversation of October 24, 2003, between Kerry and

Debra Perez (State's Suppression Hearing Exhibit 1) played. Vol. 1,

Motion to Suppress, pgs. 20-58.

Debra Perez agreed a second time to visit with Keny Perez whilepolice taped the conversation. Arrangements were made with the Sherriff'sstaff for recording the visitation which took place on November 12, 2003.Detective Hicks identified State's Suppression Hearing Exhibit 2 as beingthe tape provided by jail staff, where Detective Hicks recognized thosespeaking on the tape as Kerry and Debra Perez. Vol. 1, Motion To Suppress,

pgs. 58-60.

Jail visitation conversation of November 12, 2003, between Kerry andDebra Perez (State's Suppression Hearing Exhibit 2, 2A) played. Vol. 1,Motion to Suppress, pgs. 60-76.

After the conversation between Kerry and Debra Perez on November12, 2003, Sgt. Flores notified Detectives Hicks and DeWine jail staffadvised that Kerry Perez wanted to speak to police. Before that time, policehad no conversations with Perez about the homicide. Detectives Hicks andDeWine went to the jail. Jail staff brought Perez to Detectives Hicks andDeWine. They asked Perez if he wanted to speak with them. Perez said hewould like to speak with them to find out what is going on. Detectives Hicksand DeWine then took Perez to the police station for an interview. Perezsigned a Miranda Rights Waiver, identified by Detective Hicks as State'sSuppression Hearing Exhibit 3. The execution of the waiver, and thesubsequent interview with Perez, was videotaped, which was identified byDetective Hicks as State's Suppression Hearing Exhibit 4. Vol. 1, Motion

To Suppress, pgs. 77-80.

Video (with audio) of the interview of November 12, 2003, betweenPerez and police (State's Suppression Hearing Exhibit 4) played. Vol. 1,Motion to Suppress, pgs. 80-154, Vol. 2, Motion To Suppress, pgs. 157-247.

On cross-examination, Detective Hicks identified two pages of notes.Those notes were marked as Defendant's Suppression Hearing Exhibits Aand B. Detective Hicks read the notes into the record. The notes were inreference to statements made by the stepson Robert Smith on October 20,2003. Vol. 2, Motion To Suppress, pgs. 249-253. When Debra Perez cameto the school, she was sacred and didn't want Robby to say anything to the

7

police. Later, Debra told police the same thing Robby had told police aboutPerez's involvement in the homicide. Detective Estep was present withDetective Hicks at this time. Between October 20 2003 and October 24,2003, Detective Hicks and Estep recovered the .357 gun, obtained records ofthe gun purchase from Max's Pawn Shop, and met with Debra several times.Debra was scared that Perez would get out of jail and hurt her or havesomeone hurt her. There was no plan to charge Debra with any crime. Vol.2, Motion To Suppress, pgs. 253-260.

Q: [Defense Counsel Butz] What conversation did you have with Mr.Perez before the tape recorder started?

A: [Detective Hicks] We went over, we went into the floor he was on.They got him out of the cell. We asked him: You contacted our dispatcher,wanted to talk to us; and he said, yeah, I want to try to find out what wasgoing on. My wife was here earlier and said you all had been by the houseand told him we would go next door and talk about it if he wanted to, whichhe agreed to do.

Q: Anything else happen prior to the tape being tumed on?

A: No.

Q: When you went to jail, he was already there, right?

A: Yes.

Q: And you knew why he was there.

A: Yes.

Q: What was your understanding of why he was in jail?

A: There's - he was on, I believe, like a burglary or a theft.

Q: And you knew he had a lawyer.

A: No, I didn't know that.

Q: You said you didn't know he had a lawyer on that charge?

8

A: No, I didn't know if he did or not. I didn't have that charge, I hadnothing to do with that charge.

Q: Did you, when you encountered him, did you say: Mr. Perez, doyou have a lawyer for the charge that brings you to jail?

A: No, because he requested to speak with us. Vol. 2, Motion toSuppress, pgs. 260-261.

Deputy Russell Carman: Vol. 2, Motion to Suppress, pgs. 265-268.Detective with Clark County Sheriff. Deputy Garman, along with DeputySperry, made arrangements to tape record the visitation between Kerry andDebra Perez.

Deputy Tad Sperry: Vol. 2, Motion To Suppress, pgs. 269-278. JailDeputy with the Clark County Sheriff. Arranged with Deputy Garman totape record the visitation between Kerry and Debra Perez. The visitationbooth has a screen in the door that makes it easy to hear the inmateconversation during visitation. The security desk for the deputies is about 1foot away from the visiting booth. When the recording was going on,Deputy Sperry was present at the security and could hear the talking backand forth. Deputy Sperry could have stood outside the visitation booth andheard every word, but there was no need for him to do that since theconversation was being recorded.

Lieutenant Brad Moos: Vol. 2, Motion To Suppress, pgs. 279-285.Springfield police. The telephone lines in the Springfield police CrimesAgainst Persons Unit are recorded all the time.

Anne Woodruff: Vol. 2, Motion To Suppress, pgs. 285-287.Employee of the Clark County Information Systems. The Evercomtelephone system used for inmate calls from the Clark County jail has astandard announcement that the calls are subject to recording andmonitoring.

Deputy Johnny Lehman: Vol. 3, Motion To Suppress, pgs. 290-296.Jail deputy with the Clark County Sheriff. Assisted in the recording of thevisitation between Kerry and Debra Perez. Deputy Lehman, while sitting atthe security desk, heard Perez talk about a gun. Perez told his visitor to

9

"stick with the story." Perez said "You stick with me and stay with my story.They don't know where the gun came from." A deputy is always sitting atthe security desk.

Detective Douglas Estep: Vol. 3, Motion To Suppress, pgs. 297-306.Springfield police detective. Detective Estep was advised by detectivesinterviewing Perez that Perez would be placing a telephone call to DebraPerez. Detective Estep went to Debra's house and obtained her consent torecord her end of the telephone conversation, which he did once Perezcalled her. Detective Estep identified the mini-cassette of that recording asState's Suppression Hearing Exhibit 5. This was the same call recorded onthe police phone as State's Suppression Hearing Exhibit 4.

Sergeant Jeffrey Flores: Vol. 3, Motion To Suppress, pgs. 306-349.Springfield police detective. On November 12, 2003, Sgt. Flores had amessage on his voice mail that officers should come get Perez because hewanted to talk. Detectives DeWine and Hicks did so. Later, detective Floreslearned that Perez intended to make a telephone call to his wife, Debra.Detective Flores sent detective Estep to Debra's house for her consent to therecording of Perez's call, which she did. When Perez called Debra, he useddetective Estep's telephone. While Perez was speaking to Debra on thetelephone, detective Flores was standing 10 feet away, and could hear whatPerez was saying. During the telephone conversation with Debra, Perezasked detective Flores some questions. Detective Flores identified a tape ofthat conversation as State's Suppression Hearing Exhibit 6. Vol. 3,Motion to Suppress, pgs. 306-313.

The tape of the recording of Perez's post-interview telephone call withDebra (State's Suppression Hearing Exhibit 6) was played for the Court.Vol. 3, Motion To Suppress, pgs. 314-337.

After the interview with police and conversation with Debra, Perezwas taken back to county jail. Detective Flores learned that Perez made acall to Cecil Howard on the monitored jail telephone line. Detective Floresidentified State's Suppression Hearing Exhibit 7, and duplicate copyExhibit 8, as the recording of that call. Detective Flores listened to therecording and identified the voices of Kerry Perez and Cecil Howard, due tohis familiarity with both. Vol. 3, Motion to Suppress, pgs. 337-340.

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The recording of the telephone conversation between Perez and CecilHoward (State's Suppression Hearing Exhibit 8) was played for the Court.Vol. 3, Motion to Suppress, pgs. 340-347.

Defense Request For Continuance of Suppression Hearing:

Mr. Butz: [Defense Counsel] If the Court please, the defendant wouldask for a continuance of several weeks to further explore the medical aspectsof whether or not the statement the defendant gave was influenced by, incombination with the prescription drugs he was on.

Mr. Schumaker: [Prosecutor] We have no objection, Your Honor, towhatever time the defense needs to explore any claims that deemappropriate.

Mr. Butz: I would say that if the matter could be set within the next 30days, that would give us time to do what we have to do next.

The Court: All right. The State has no further evidence to present atthis time?

Mr. Schumaker: We have no further questions to present, YourHonor. We may very well, given the fact that the defense is indicating thatthey will be exploring this issue, of course, the State will be exploring thisissue so we would ask to keep the evidence open at this point.

***

The Court: The defense request for a continuance of the remainder ofthis hearing to explore some medical issues will be granted. You can contactthe Bailiff to have that set up in approximately 30 days. Vol. 3, Motion toSuppress, pgs. 350-351.

Defense Motion To Sever Charges & Suppress Perez StatementsTo Debra: Single volume, entitled "Transcript of Motion To Suppress andto Sever July 5, 2005", pages 1 to 51, plus 6 page index.

The Court entertained argument from the parties regarding theevidence of other robberies as it relates to the course of conductspecification and Evidence Rule 404(B). The Court announces it will take

11

the matter under advisement. Transcript of Motion To Suppress and to SeverJuly 5, 2005, pgs. 1-22.

The Court entertained argument from the parties regardingadmissibility of the taped conversations between Kerry and Debra Perez.Transcript of Motion To Suppress and to Sever July 5, 2005, pgs. 22-31.

Sgt Jeffrey Flores: Transcript of Motion To Suppress and to SeverJuly 5, 2005, pgs. 31-43. Springfield police. Perez not charged with themurder at the Do-Drop Inn at the time Sgt. Flores had dealings with DebraPerez regarding the recordings of her conversations with Perez. Perez wasnot told that Debra was cooperating with the police.

The Court entertained additional argument from the parties regardingthe admissibility of the taped conversations between Kerry and Debra Perez.Transcript of Motion To Suppress and to Sever July 5, 2005, pgs. 43-50.(The trial Court denied the motion to suppress and sever by decisions filedAugust 26, 2005, Docs 121 and 122).

Trial Transcript Summary

Competency Hearing: Vol. 1, pgs. 34-50. Competency examconducted by Dr. Kidd one week before the start of the trial at the request ofthe State. Data sources for competency evaluation were (a) one and one halfhour clinical interview with Perez; (b) results of the Georgia CourtCompetency Test; (c) records review from discovery packet (d) records fromforensic psychiatric center including an evaluation of Perez dated October9, 2003, along with an MMPI 11 completed at that time; and (e)conversations with jail staff regarding Perez's affect and demeanor.

Perez scored a 96 out of 100 on the Georgia Court Competency Test.

Q: [Defense counsel Butz] Did you do any testing for organicproblems?

A: [Dr. Kidd] No, I didn't.

Q: Could you have done that or is that something somebodyelse has to do?

12

A: It would depend on the type of organic problems. If it wereactual neurological like a neuropsychological test, I don't havetraining in doing that, so I would have - we would have hadsomebody else do that. I didn't see an indication of a need for that atthe time.

Q: Did you learn at all about that Mr. Perez had had some headinjury in the past that might have been cause to look further?

A: He had indicated to me and I also saw in the prior evaluationthat he was involved in a motorcycle accident. Beyond that, I don'trecall any incidents and I didn't observe anything or hear anything orany kind of symptoms that he reported to me that would suggest thathe has any kind of lasting problems from that. Vol. 1, pgs. 43-44.

Due to medication, Perez's affect was blunted, although he did givenarrative answers to Dr. Kidd's questions.

Q: [Defense counsel Butz] Do you thing that the regimen ofmedication that he's on is something that should be explored in moredetail?

A: {Dr. Kidd] Well, first off, let me say I'm not a psychiatrist,so I can't say too much about what decisions about medicationsshould be made. He didn't -

Q: Did you make a referral? Do you have that ability?

A: I can make a referral. What I saw when I met with Mr. Perezon Thursday [August 25, 2005] did not suggest that he was highlyovermedicated to the point where I would be -- where I was concernedabout, you know, his ability to engage me in any way.

Q: But as we sit here today, you can't rule out that he'sovermedicated.

A: I can't rule that out. Vol. 1, pgs. 45-46.

13

At the request of the defense, Dr. Kidd's file and the discovery packetwas copied and made a part of the Court record. Vol. 1, pgs. 46-47. Markedas Joint Exhibit 1. Vol. 1, pg: 90.

The Court determined Perez to be competent to stand trial. Vol. 1,pgs. 49-50.

Hearing Regarding Spousal Competence As A Witness: Vol. 1,pgs. 50-61. After entertaining argument, the Court ruled that the tapedconversations between Perez and Debra occurring on the jail visitationphone were admissible because Perez had no expectation of privacy duringthose conversations.

Hearing Regarding Severance And Other Bad Acts: Vol. 1, pgs.61-82, Vol. 1, pgs. The parties state their positions and the Court takes thematter under advisement. Defense motion regarding exclusion of other badacts evidence overruled by written decision. Vol. 5, pg. 766.

Preliminary Jury Instructions: Vol. 4, pgs. 740-752.

Jury View: Colloquy regarding jury view of Beverage Oasis and DoDrop Inn. Vol. 4, pgs. 752-764. Perez waived presence during jury view.Vol. 4, pgs. 753-754. Instructions to Jury regarding view. Vol. 4, pgs. 760-

762.

Pre-Trial Motions Regarding Other Bad Acts: Vol. 5, pgs. 766-771. Defense motion regarding other bad acts overruled, and a writtendecision will be filed. Defense motion in limine sustained regardingexclusion of Perez's statements to police regarding escape from prison, andexclusion of evidence regarding Cassano's robbery, where that robbery tookplace in July, 2003, five months after the Do Drop Inn murder. Vol. 5, pgs.766-768. Defense objections noted regarding denial of severance motion andamendment of Counts 14 and 15 of the indictment to change dates ofoccurrence. Vol. 5, pgs. 768-770.

Preliminary Jury Instructions: Vol. 5, pgs. 771-773.

State's Opening Statement: Vol. 5, pgs. 773-786.

Defense Opening Statement: Vol. 5, pgs. 786-789.

14

State's Case In Chief

Ramy Awad: Vol. 5, pgs. 790-792. Manager, Springfield Wal-Mart.Identified records of sale (State's Ex. 1) of a Winchester Model 1300 20gauge shotgun, serial number L3398494 to Debra Perez on May 29, 2002;sold by store employee Angie Hart. Vol. 5, pg 792.

Angela Hart: Vol. 5, pgs. 792-795. Employee of Wal-Mart.Identified records of sale of the Winchester Model 1300 shotgun to DebraPerez on May 29, 2002. Hart recorded Debra Perez's driver's licenseinformation on the sale record, State's Ex. 1. Vol. 5, pg. 794.

Lawrence A. Beloff: Vol. 5, pgs. 796-799. Proprietor of a pawn shopknown as Max's Jeweler's and Loan Company. Identified records of sale(State's Ex. 2) of a Taurus .357 caliber revolver to Debra Perez on February11, 2003. Identified by serial number a gun, designated as State's Ex. 3, asthe gun he sold to Debra Perez on February 11, 2003. Vol. 5, pg. 798.

Pamela S. Carpenter: Vol. 5, pgs. 800-803. Employee of Max'sJeweler's and Loan Company. Identified records of sale (State's Ex. 2) ofthe Taurus .357 revolver to Debra Perez on February 11, 2003.

Steve Daly: Vol. 5, pgs. 803-808. Proprietor of Peddler's Post atCaesar's Creek flea market. Identified records of a trade (State's Ex. 5) oftwo High Point 9 millimeter pistols for a Taurus .357 revolver, conducted onMarch 8, 2003, with Debra Perez. Vol. 5, pg. 805. Identified the Taurus.357 revolver, State's Ex. 3, as the gun traded by Debra Perez. Vol. 5, pg.805. Identified records of a sale (State's Ex. 4) of the .357 revolver (State'sEx. 3) on July 20, 2003, to Stanley Jarris.

Stanley Jarris: Vol. 5, pgs. 808-811. Identified the .357 revolver(State's Ex. 3) as the gun he purchased on July 20, 2003, and State's Ex. 4as the paperwork for that purchase. Jarris turned the gun over to police inSeptember, 2003. Vol. 5, pg. 810.

George Remmers: Vol. 5, pgs. 811-817. Stepfather of SherryAlspaugh, who had a child with Perez. Remmers said he had custody ofPerez's child with Sherry while Perez was in prison. (Defense objection to

15

prison reference sustained. Vol. 5, pg. 812). Perez asked if he could borrowRemmer's 12 gauge shotgun. Perez said he intended to take Debra's sonRobby hunting. Remmers identified State's Ex. 6 as the shotgun he letPerez borrow, a 12 gauge twin barrel. The shotgun had a full stock whenRemmers loaned it to Perez. Remmers loaned the shotgun to Perez beforethe Beverage Oasis robbery. Vol. 5, pg. 813.

Mistrial Motion by defense overruled. The basis was Remmer'sreference to Perez being in prison. Vol. 5, pgs. 815-816.

Matthew Linger: Vol. 5, pgs. 817-825. 911 operator. IdentifiedState's Ex. 7, a recording of a 911 call regarding the Beverage Oasisrobbery on June 22, 2003. 911 dialogue transcribed on Vol. 5, pgs. 820-824.911 caller, Clifford Conley, said he'd been robbed by two individuals, onedropped a shotgun at the scene.

Sgt. Michael Haytas: Vol. 5, pgs. 828-863. Recalled, Vol. 6, pgs964-966. Sergeant, Springfield Police Department. Conducted crime scenesearch of Beverage Oasis. Identified photographs as follows:

State's Ex. 38B: Front of Beverage Oasis. Vol. 5, pg. 831.State's Ex. 38C: Drive-thru area. Vol. 5, pg. 831.State's Ex. 38D: Inside the drive-thru area. Vol. 5, pg. 831.State's Ex. 7A: Shotgun on pavement. Vol. 5, pg. 832.State's Ex. 7B: Shotgun on pavement. Vol. 5, pg. 832.State's Ex. 7C: Rear of Beverage Oasis. Vol. 5, pg. 833State's Ex. 7D: Rear parking lot area. Vol. 5, pg. 833.State's Ex. 7E: Cooler area inside drive-thru. Vol. 5, pg. 833State's Ex. 7F: Office area for Beverage Oasis. Vol. 5, pg. 834.State's Ex. 7G: Pistol on office desk. Vol. 5, pg. 834.State's Ex. 7H: Shotgun on pavement. Vol. 5, pg. 834.State's Ex. 71: Projectile holes in door frame. Vol. 5, pg. 834. Center

mass of the shot pattern is five feet off the ground. Vol. 5, pg. 835.State's Ex. 7J: Shotgun shells on pavement. Vol. 5, pg. 835. These

shells were 25 feet from the door frame with projectile holes. Vol. 5, pg.836-837.

State's Ex. 7K: Shotgun shell on driveway. Vol. 5, pg. 837.State's Ex. 7M: Plastic wadding from a shotgun shell lying on the

pavement. Vol. 5, pg. 839.

16

State's Ex. 7N: Shotgun on pavement, showing slide activated. Vol. 5,pg. 839.

State's Ex. 70: Plastic wadding from a shotgun shell lying on thepavement of the rear parking area. Vol. 5, pg. 844.

State's Ex. 7Q: Close up of door frame showing pellet holes. Vol. 5,pg. 846.

State's Ex. 7R: Drive-thru area showing shell casings. Vol. 5, pg. 847.State's Ex. 7S: Drive -thru area showing shell casings. Vol. 5, pgs

847-848.State's Ex. 7T: Drive-thru area showing evidence placards. Vol. 5, pg.

851.State's Ex. 7U: Cooler area showing . 22 caliber shell casings. Vol. 5,

pg. 854.State's Ex. 7V, 7W, 7X: .22 caliber shell casings in the drive-thruarea. Vol. 5, pg. 855.State's Ex. 7Y, 7Z plastic shotgun wadding in the drive-thru area.Vol. 5, pg. 856.State's Ex. 7AA, 7BB, 7CC, 7DD, 7EE: .22 caliber shell casings inthe drive-thru area. Vol. 5, pg. 856.State's Ex. 7FF: Close-up of cooler door showing a projectile strike.Vol. 5, pg. 857.State's Ex. 7GG, 7HH: Evidence placards in drive-thru area. Vol. 5,pg. 857.State's Ex. 711: .22 caliber shell casing on storage room floor. Vol. 5,pg. 858.State's Ex: 7JJ, 7KK: Desk in office showing holster and pistol. Vol.5, pg. 859.State's Ex. 7LL, 7MM: Drive-thru area with evidence placards. Vol.5, pg. 860.State's Ex. 7NN: Two spent shotgun shells in the driveway. Vol. 5,pg. 861.

Sergeant Haytas identified tangible evidence as follows:

State's Ex. 8: Shotgun shell from parking lot. Vol. 5, pg. 837State's Ex. 7L: Shotgun shell from parking lot. Vol. 5, pg. 838.State's Ex. 9: Shotgun shell from parking lot. Vol. 5, pg. 838.State's Ex. 6: Shotgun. Vol. 5, pg. 840. Superglue process used to

identify fingerprint on barrel of the shotgun. Vol. 5, pg. 841.

17

State's Ex. 37: Duct tape that had been wrapped around the grip of theshotgun. Vol. 5, pg. 840.

State's Ex. 11, 11A and 11B: Latent fingerprint lifts from the shotgun.

Vol. 5, pgs. 842-845.State's Ex. 12: Plastic wadding from a shotgun shell. Vol. 5, pg. 844-

845.State's Ex. 13: Shotgun pellets recovered from door frame. Vol. 6,

pgs. 964-966.State's Ex. 36: Door frame section showing pellet holes. Center of

shot pattern was five feet off the ground. Vol. 5, pgs. 846-847.State's Ex. 14,15 and 16: Three .22 caliber shell casings. Vol. 5, pg.

848-849.State's Ex. 10A, IOB, IOC, IOD: Four live shotgun shells recovered

from the shotgun. Evidentiary value fingerprint recovered. Vol. 5, pg. 850-

851.State's Ex. 17: Cloth wadding from a shotgun shell. Vol. 5, pg. 851-

852.State's Ex. 18: Plastic end cap from a shotgun shell. Vol. 5, pg. 852.State's Ex. 19, 20, 21, 22, 23 : Five .22 caliber shell casings. Vol. 5,

pgs. 852-855.State's Ex. 25: .22 caliber shell casing. Vol. 5, pg. 858.State's Ex. 24: .22 caliber projectile recovered from inside the cooler.

Vol. 5, pg 858.State's Ex. 35A, 35B, 35C: Pistol, holster and clip from office desk.

Vol. 5, pg. 859.

Christopher J. Atchison: Vol. 5, pgs. 864-876. Worker at BeverageOasis on June 22, 2002. Saw two individuals advancing, each with longguns. Atchison shouted a warning and ran. Atchison identified the shotgun

(State's Ex. 6) as similar to the gun he saw that night. Vol. 5, pg. 873Atchison heard gunshots, small caliber first, then rifle or shotgun: Vol. 5, pg.874.

Clifford Conley: Vol. 5, pgs. 877-908. Owner of the BeverageOasis. Kept an Ivers Johnson .22 caliber pistol (State's Ex. 35A) (with

holster (State's Ex. 35B) and clip (State's Ex 35C)) for self-protection inthe desk drawer in his office at the Beverage Oasis. Vol. 5, pg. 886-887.Five minutes before the 11:00 PM closing time on June 22, 2002, Conleysaw on video monitors two individuals wearing gas masks and brandishingshotguns, run up to employee Chris. Conley saw employee Chris run out the

18

door and employee Becky drop to the floor. The other robber ran afteremployee Chris, and the a robber went to the cash register. As Conley called911, the robber from the cash register started beating on the cash register.Conley dropped the phone, got his pistol and went after the robber from thecash register. The robber from the cash register ran past Conley, and Conleyfired a warning shot into the cooler. Vol. 5, pgs. 887-895. When the robberfrom the cash register turned and raised the shotgun, Conley fired again. Therobber from the cash register dropped the shotgun, brought his arm acrosshis stomach, and dropped to one knee. The other robber appeared and fired ashot at Conley. Conley hid behind the doorway just as the blast from theother robber hit the door frame, at the height of his face. Conley shot twotimes and the other robber fired again. The robber from the cash registerwho had dropped the shotgun (State's Ex. 6)came over to the other robber.Conley fired some more shots. Both robbers left. Police arrived minuteslater. Vol. 5, pgs. 895-903.

Officer Jeffrey Steinmetz: Vol. 5, pgs. 909-913. Springfield policeofficer. On December 18, 2003, Officer Steinmetz executed a search warrant(State's Ex. 39) upon Cecil Howard, who at the time was in the ClarkCounty jail. Steinmetz photographed scars on Howard's body, including ascar on Howard's buttock. Identified a photograph of Cecil Howard (State'sEx. 700) and two photographs of the scar on Howard's buttock. ( State's

Ex. 7QQ, 7PP).

Detective Daniel DeWine: Vol. 5, pgs. 914-921. Identified

photographs of Cecil Howard. State's Ex. 39, and State's Ex. 700.Assisted in the transport of Cecil Howard to Community Hospital for a X-ray pictures of his buttocks. Identified X-ray pictures as being that ofHoward's buttock. State's Ex. 27, 28, 29.

Mary Ann Wiebeck: Vol. 5, pgs. 922-929. Radiology assistant atCommunity Hospital. Identified metal fragments in the three X-rays ofHoward's buttock as being consistent with bullet fragments. (State's Ex. 27,28, 29)

Dr. Salvador B. Trinidad: Vol. 5, pgs. 930-939. Radiologist withCommunity Hospital Expressed an opinion, to a reasonable degree ofmedical certainty, that the x-rays of Cecil Howard's buttock showed agunshot wound. (State's Ex. 27, 28, 29).

19

William B. Mark: Vol. 5, pgs. 940-947. BCI firearms examiner.Marks tested Conley's gun by recovery of eight bullets he fired from thegun. Due to excessive residue buildup in the barrel of Clifford Conley'sgun, it would not be possible to identify a bullet fired from Conley's gun.

(State's Ex. 35A)

Robin Roggenbeck: Vol. 5, pgs. 947-956. BCI fingerprint examiner.Obtained a fingerprint card from Cecil Howard. (State's Ex. 34) Identified aphotograph of Cecil Howard as being the person from whom she obtainedthe fingerprint card. (State's Ex. 39). Identified the lift from the shotgun

(State's Ex. 6) barrel as being a print of the left middle finger of CecilHoward. (State's Ex. 11 B)

Preliminary Matters: Vol. 6, pgs. 959-964. Before reconvening, thetrial court noted that a juror had asked the court bailiff whether Perez was ona sedative or medication. Counsel for Perez renewed their motion to severother robbery charges from the case. The trial court instructed the jury not toanticipate what the evidence may show, and to not discuss the case amongstthemselves.

William E. Walls: Vol. 6, pgs. 966-969. State Parole Officer.Identified a photograph as being that of Cecil Howard. (State's Ex. 39).Howard was obligated to report once a month. Howard reported for May,2002, did not report or make any contact with Walls in June, 2002. Howardcalled Walls on the telephone on July 1, 2002, and reported in person onJuly 11, 2002.

Detective Darwin Hicks: Vol. 6, pgs. 970-976. Compiled a photoarray with Cecil Howard in it. State's Ex. 38A. Showed the array toBeverage Oasis employee Don Little, who picked out photo number three(Cecil Howard) as the person he saw driving away.

Donald W. Little: Vol. 6, pgs. 977-993. Employee of the BeverageOasis. Was confronted by two individuals wearing masks. Each of them wasbrandishing a shotgun. Little, along with employees Chris and Julie, randfrom the store. They jumped in a friend's SUV, which happened to bestopped at the nearby traffic light. Little told the driver to flee because of therobbery, and the driver drove backwards for two blocks. Little heardgunshots. About five or six minutes later, as Little sat in the front passengerseat of the SUV, he saw a car pass them. The back seat passenger in the

20

other car stuck his head out the window, looked at Little, and said to thedriver "Go." Vol. 6, pgs. 977-986. Little was shown a photo array ( State'sEx. 38A) and picked out Howard's photo as being the person he saw thathad stuck his head out of the other car the night of the robbery. Vol. 6, pgs.987-988.

Preliminary Instruction: The trial court instructed the jury that theywere about to hear evidence of other crimes for which the defendant had notbeen charged. The jury was instructed to consider this evidence "only for thepurpose of deciding whether it proves the Defendant's plan to commit theoffenses charged at this trial." Vol. 6, pgs. 994-995.

Rhonda Boyd: Vol. 6, pgs. 995-1000. Barmaid at the Nite OwlTavern. Just after 2:00 AM on May 29, 2002, two masked men entered. Onebrandished a shotgun and stayed by the door. The shotgun had the handlesawed off and wrapped in duct tape. The other brandished a handgun andforced Boyd to take the money out of the cash register and put it into a bag.Boyd did not resist. Boyd was then directed to lay on the floor next to fellowemployee Gary Lawson. The robbers then fled the bar. Vol. 6, pgs. 995-998.On September 11, 2002, just after 1:30 AM, a man wearing a "special forcesmask", and brandishing a handgun, ordered Boyd and the others in the bar togo to the floor, which they did. Money was taken from the cash drawer andthe gunman fled. Vol. 6, pgs. 998-1000.

Danny T. Mansfield: Vol. 6, pgs. 1001-1005. Owner of the NiteOwl Tavern. Mansfield estimated the loss from the May 29 2002, robberybetween four and six hundred dollars, and the loss from the September 112002, robbery between three and four hundred dollars.

Preliminary Matters: Vol. 6, pgs. 1006- 1008. Renewed defenseobjection to inclusion of evidence of the robberies of the 19`h Hole andSugarbaker's overruled. State's position is that the other bad acts evidence ispertinent to intent; i.e. the intent is that if no one resists or if everyonefollows the exact orders of the defendant, he does not kill or attempt to killthe victims, otherwise, he kills or attempts to kill the victims.

Art Holmes: Vol. 6, pgs. 1009-1015. Owner of 19th Hole bar.Around 12:45 AM on June 7, 2002, a man dressed in black, wearing a skimask and brandishing a shotgun, entered the bar and announced a robbery.The robber ordered the patrons to the floor and ordered Holmes to empty the

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cash drawer contents into a green bank bag. All complied and the robberfled. Holmes identified State's Ex. 40A, a non-audio video tape of the

robbery. Videotape (State's Ex. 40A) played for the jury.

Donald E. Mercer: Vol. 6, pgs. 1016-1021. Owner of Sugarbaker'sbar. Around 12:45 AM on June 19, 2002, two men brandishing shotgunsentered the bar. Each robber chambered a round in the shotgun and orderedthe patrons to the floor. One robber got the money out of the cash registerwhile the other robber collected the wallets of the patrons. The robbers thenfled. Mercer identified State's Ex. 41A, which is an audio and video

recording of the robbery. State's Ex. 41A played for the jury.

Ricky E. Bruce II: Vol. 6, p. 1021-1023. Patron of Sugarbaker'sbar. Around 1:00 AM on June 19, 2002, two masked men brandishingshotguns entered the bar and ordered everyone to the floor. Bruce laid on thefloor and outstretched his arms. The robbers ordered the patrons to handover their wallets, but Bruce stayed still. One of the masked men put theshotgun barrel to his neck and said hurry up. Bruce handed over his wallet.The robbers fled.

Rosemary Demmy: Vol. 6, pgs. 1023-1026. Employee of theLantern bar. Around 11:00 PM on September 2, 2002, a masked manbrandishing a small handgun entered the bar and ordered the owner Charles"Monty" Demmy to empty the cash drawer, which he did. The robber waswearing dark clothing and had a stocky build.

Charles "Monty" Demmy: Vol. 6, pgs. 1026-1030. Employee of the

Lantern bar. Around 11:00 PM on September 2, 2002, a masked manbrandishing a small handgun entered the bar and ordered the owner Charles"Monty" Demmy to empty the cash drawer, which he did. The robber waswearing dark clothing and had a stocky build. The robber forced Monty toopen the safe in the office. The safe was empty. Then, the robber went to theremain patrons and robbed them of their wallets:

Gina Smith: Vol. 6, pgs. 1030-1035. Patron of the Nite Owl bar.Around closing time on September 11, 2002, Gina saw a man just outsidethe. bar seated in a Camaro T-top and putting on black gloves. Moments aftershe entered the bar, the man from the Camaro entered the bar, jumped overthe rail, and demanded money from the patrons and the proprietor.

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Jill Allen: Vol. 6, pgs. 1037-1056. Bartender at the Do Drop Inn.Around midnight on March 5, 2003, two men wearing black clothes, blackgloves and ski masks kicked open the Tibbetts Street side door. The shorterone said "This is a robbery, don't nobody move, this is not a joke." RonaldJohnson, whose leg was immobilized in a brace, was leaning against a barstool. The shorter one, standing about five to six feet away, shot Johnsonwith a handgun. Jill hid in the men's room.

Cindy DePriest: Vol. 6, pgs. 1057-1067. Bartender at the Do DropInn. DePriest worked as a bartender that evening until 10:00 PM, but cameback around 11:00 to socialize. Around 11:30 PM on March 5, 2003, twomasked men entered the bar from the Tibbetts Street door and announced arobbery. Both had firearms. At first, the robbers ordered everyone to puttheir hand on the bar. Then, the robbers ordered everyone on the floor andordered them back up. DePriest was ordered behind the bar to retrieve thecash drawer. As DePriest retrieved the cash drawer and handed the car to therobber behind the bar, the other robber shot patron Ronald Johnson. Therobbers fled.

Larry Delawder: Vol. 6, pgs. 1069-1078. Owner of the Do DropInn. Around midnight on March 5, 2003, two masked men entered the DoDrop Inn, announced a robbery, and ordered patrons to put their hands onthe bar. Patron Ronald Johnson was seated at the bar. Johnson was wearing aleg brace. One of the robbers went behind the bar to get the cash register.The other robber shot Johnson from about 5 to 6 feet away. The shooter said"Did I hit you?", and Johnson replied "You hit me hard." Delawderidentified photos showing the inside of the bar (State's Ex. 42 , 43) after barstools had been removed.

Officer Paul C. Hurd, Jr. Vol. 6, pgs. 1081-1087. Springfield policeofficer. Responded to a shooting call at the Do Drop Inn, following adispatch at 12:05 AM on March 6, 2003. Hurd encounter the victim, whowas bleeding from a gunshot wound to the back. The victim had no pulseand no respiration.

Robert L. Smith: Vol. 6, pgs. 1087-1090. Springfield FireDepartment EMS technician. Dispatched to Do Drop Inn at 12:07 AM onMarch 6, 2003 in reference to a shooting. Victim had no vital signs. Victimarrived at Mercy Hospital as 12:16 AM.

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Mark Parsons: Vol. 6, pgs. 1090-1119. Springfield Police CSI.

Identified State's Exhibit 65A, a videotape of the Do Drop Inn scene. Video

played for the jury. Vol. 6, pg. 1093. Evidence placard 1 shows where thevictim was laying, and placards 2 and 3 show where the suspects werestanding. Vol. 6, pg. 1097. Identified scene photos marked State's Exhibits

42 through 64. Vol. 6, pgs. 1098-1106, 1118-1119. Identified State's Ex.66A, being the victim's ball cap. Vol. 6, pg. 1103. Identified State's Ex.67A, being a blood swab from the carpet, and State's Ex. 68A, a control-

sample swab. Vol. 6, pgs. 1103-1104. Identified State's Ex. 69A as beingthe projectile recovered from the victim after autopsy. Vol. 6, pg. 1108.

Identified State's Ex. 70A, as being a via] of the victim's blood. Vol. 6, pg.

1110. Identified State's Ex. 71A, as being the victim's jacket; State's Ex.

72A, as being the victim's sweatshirt; State's Ex. 73A, as being the victim's

red hooded sweatshirt; State's Ex. 74A, as being the victim's T-shirt;

State's Ex. 75A, as being the victim's blue jeans; State's Ex. 76A, as being

the victim's leg brace; State's Ex. 76B, as being the victim's socks; State'sEx. 76C, as being the victim's right boot. Vol. 6, pgs. 1111-1117.

Dr. Robert Stewart: Vol. 6, pgs. 1121-1147. Deputy Clark County

Coroner. Identified State's Ex. 77, 78 as being autopsy photos. Victim diedof bleeding from a gunshot wound to the back that severed the spinal cordand punctured the right lung. The bullet was a .357 caliber copper-jacketedhollow point round. Identified State's Ex. 79 as being a drawing showing

the path of the bullet. Vol. 6, pg. 1132. Identifi ed State's Ex. 69A, as beingthe bullet recovered from the victim. Vol. 6, pg. 1140-1141. Identified

State's Ex. 70A, as being a vial of blood recovered from the victim. Vol. 6,pg. 1142. Identified State's Ex. 76A, as being the victim's leg brace. Vol. 6,

pg. 1142.

Timothy C. Shepherd: Forensic criminalist with Springfield police.Vol. 7, pgs. 1150-1179. Identified firearms related exhibits from theBeverage Oasis and Do Drop Inn scenes. Based upon gunpowder residuefindings, Shepherd was of the opinion that the victim was shot from adistance of four feet or less. Vol. 7, pg. 1173.

Ronald Rude: Vol. 7, pgs. 1180-1183. Deputy Clark County Sheriff.Identified Kerry Perez as the individual he had conversations with whileworking private duty security at the Speedway gas station between 2002 andthe summer of 2003.

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Sergeant Barry Eggers: Vol. 7, pgs. 1183-1196. Springfield PoliceDepartment. Off the record discussion about the scope of Sgt. Eggerstestimony. Vol. 7, pgs 1185-1193. Sgt Eggers testified that while he wasworking on duty at a daytime downtown festival in the summer of 2003,Kerry Perez struck up a conversation with him. Perez told Sgt. Eggers thathe heard that his name was being brought up as a suspect in the numerousrobberies in the city. Perez said something to the effect that he thought itwas funny that people would think that he was involved in something likethat.

James Copeland: Vol. 7, pgs. 1196-1202. Guidance counselor atSpringfield City Schools. Copeland had a conference with student RobertSmith. Smith wrote a statement about what was troubling him. Copelandidentified that written statement by student Robert Smith as State's Ex. 80.

Robert Smith: Vol. 7, pgs. 1204-1225. Son of Debra Perez, the ex-wife of Kerry Perez. During the years 2002 and 2003, Smith was living inthe same house with his mother Debra, Kerry Perez, and Lindee Alspaugh.Identified the shotgun with the sawed off stock (State's Ex. 6) as a weaponkept in the house by Kerry Perez. Identified the .357 revolver (State's Ex. 3)as a weapon kept in the house by Kerry Perez. In reference to the BeverageOasis robbery in June 2002, Smith testified that the day after the robbery,Perez told Smith what took place during the robbery. Perez showed thebullet wounds in his arm, and said that he got those wounds in a shootoutwith a store employee. Perez said he did the robbery with Cecil Howard.Smith identified a photo (State's Ex. 39) of Cecil Howard. Perez told Smiththat Cecil Howard got shot in the butt and the ankle during the robbery.Perez told Smith that after Cecil got shot, Cecil dropped his gun. Perez wentto help Cecil up. Perez said he shot back at the store employee. Smith saidthat Perez drove a red T-top Camaro. In respect to a television news reporton the recovery of the shotgun from Beverage Oasis robbery, Perez said"There go the one that was dropped at the scene." Smith said that after Perezgot locked up for something else, he told his school counselor about whatPerez had done. Smith identified the statement he wrote (State's Ex. 80) tothe school counselor. Smith read the content of that statement: "I know of amurder at the Do Drop Inn bar. The person who did it was Kerry Perez. Hetold me that he done it with s chrome .357 with a rubber grip. He traded thegun in at Caesar Creek Flea Market for two 9 millimeters High Point. Bothare black. In his words the night of the murder, he came home and said that

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he killed a white man for calling him the N word at the bar." Vol. 7, pg.1218-1219.

The day after the Do Drop Inn robbery, Perez told Smith "I had tomere an MF'er last night." Smith said "merc" means "kill." Perez said thatafter he shot the guy, the victim was gurgling words. Perez said the victimcalled him the "N word", and that's why Perez said he shot the victim. Afterthe newspaper had a front page story (dated March 7, 2003) about the DoDrop Inn crime, Perez showed the newspaper to Smith an Debra and said"Look, I made the front page." Perez said he shot the victim with the .357revolver, and that it was a nice gun that had a lot of power. Perez said heused hollow point bullets, and that those bullets explode on impact. Smithidentified the newspaper (State's Ex. 82) as being the story Perez had shownto himself and Debra. A day or two after the Do Drop Inn crime, Smith,Debra and Perez went to Caesar Creek Flea Market and traded the .357revolver for two High Point pistols. Vol. 7, pg 1217.

Smith said he saw Perez at the house with a mask and gloves, and thatPerez kept these items on a shelf in the closet. Smith identified a tobogganwith holes cut in it (State's Ex. 81A) as being the mask he gave to policedetectives. Smith identified another mask ( State's Ex. 81B) as being Perez's"regular robbery mask." Smith identified a Halloween mask ( State's Ex.S1C) as another item he turned over to police detectives.

Lindee LecAnn Alspaugh: Vol. 7, pgs. 1228-1232. Daughter ofSherry Alspaugh and sister of Robert Smith, stepdaughter of Debra Perezand daughter of Kerry Perez. On March 7, 2003, Lindee was living in thesame house as Kerry Perez. During a television news story about the DoDrop Inn crime, it was reported that the victim was shot in the back. Perezlaughed and said "They made the man look like a coward."

Deputy Russell Garman: Vol. 7, pgs. 1232-1240. Lieutenant withthe Clark County Sheriff. Set up equipment to record conversations betweenKerry Perez and his wife during jail visitation, as was pre-arranged withPerez's wife. Conversation taking place on October 24, 2003, and November12, 2003, were recorded. Deputy Garman identified the cassette tape(State's Ex. 83) as the tape on which those conversations were recorded.

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Deputy John Lemen: Vol. 7, pgs. 1241-1243. Deputy Sheriff, ClarkCounty. Assisted in recording a conversation between Kerry Perez and hiswife during jail visitation of October 24, 2003.

Deputy Michael Combs: Vol. 7, pgs. 1243-1246. Deputy Sheriff,Clark County. Assisted in recording a conversation between Kerry Perez andhis wife during jail visitation of October 24, 2003. Identified State's Ex. 84as the cassette tape of that conversation.

Deputy Tad Sperry: Vol. 7, pgs. 1246-1247. Deputy Sheriff, ClarkCounty. Assisted in recording a conversation between Kerry Perez and hiswife during jail visitation of November 12, 2003.

Detective Dan DeWine: Vol. 7, pgs. 1248-1303. Springfield policeofficer. Identified a "Consent to Record Conversations" form ( State's Ex.85) signed by Debra Perez, and dated October 24, 1983. Identified thecassette tape (State's Ex. 84) of the conversation between Kerry and DebraPerez that took place on October 24, 2003. (At sidebar, defense hearsayobjection overruled; State noted that tape has been redacted. The unredactedversion is marked as State's Ex. 84A. Vol. 7, pgs. 1252-1256.) Preliminaryinstruction to the jury about the playing of the tape. Vol. 7, pg. 1257. Tapeplayed and transcript made. Debra told Kerry that the police had questionedher about the Do Drop Inn. Perez said that the only people who know arehimself, Debra and Robby. Vol. 7, pg. 1259-1261, 1264. Perez said if thepolice come back, Debra is to say she knows nothing. Vol. 7, pg. 1262.Debra told Perez that she told the police she got rid of the gun because it wastoo big, and that she traded it for 2 nines. Vol. 7, pg 1265.

Tape of the conversation of November 12, 2003 ( State's Ex. 83)played and transcript made. Vol. 7, pgs. 1272-1300. Perez expressed doubtthat police can prove anything. Perez asked Debra if she wanted him toconfess to the police. Perez told Debra that the police were just trying toscare her and that they had nothing on her. Perez asked Debra if sheunderstood that there would be time for a murder on top of a robbery. Perezsaid that police would want to know who else was involved. Perez said "Ican't take my dude down with me either." (Vol. 7, pg. 1295)

Detective DeWine identified the Taurus .357 revolver ( State's Ex. 3)and the two robbery masks. (State's Ex. 81B, 81C). Vol. 7, pgs. 1301-1302.

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John McGhee: Vol. 7, pgs. 1303-1315. Friend of Kerry Perez.McGhee lived with Kerry Perez, Debra an Robert Smith during the summerof 2003. Identified a photo (State's Ex. 39) of Cecil Howard. Defenseobjection at sidebar overruled regarding McGhee's expected testimonyabout statements made to him by Perez. Jury excused and the Courtadmonished McGhee to avoid testifying regarding statements by Perezreferencing robberies after the Do Drop Inn crime. Vol. 7, pgs. 1306-1311.McGee testified that Perez told him in reference to robberies that he "couldnot be stopped." Perez said, in reference to resistance by robbery victims,that "they would have to get dealt with." Vol. 7, pgs. 1312-1313.

Detective Dan DeWine: Vol. 8, pgs. 1324-1508. The afternoon ofNovember 12, 2003, after Kerry Perez had met with Debra, Perez notifiedClark County jail staff that he wished to make a statement to police. DeWinemet with Perez. Perez was given Miranda rights and signed a rights waiver.State's Ex. 86. DeWine identified the videotaped interview with Perez.State's Ex. 26. Defense renewal their previous motion to suppressoverruled, and the interview was played for the jury. Vol. 8, pg. 1327-1328.

Perez's Statement To Police

Perez told police that he had lent a Taurus .357 revolver to JohnMcGhee. Perez said he thought McGhee might have used it in the robbery ofthe Do Drop Inn that "went bad." Vol. 8, pgs. 1333-1339. Perez said thatMcGhee asked to borrow the gun to do a robbery, and that McGhee toldPerez he does bar robberies. Vol. 8, pgs. 1339-1344. Perez said he also soldto McGhee a Maverick brand 12 gauge double barrel pump action shotgun.Vol. 8, pgs. 1344-1345. Perez said that McGhee disguises himself so thatrobbery victims think he's black. Vol. 8, pg. 1347. Perez said that afterMcGhee gave the Taurus .357 back to him, Debra Perez sold that gun two orthree days later. Vol. 8, 1351-1352.

Perez said he had worked as a trucker for Mcllvaine, and that hewould have been on the road at the time of the Do Drop Inn robbery. Vol. 8,pg. 1358, 1363. Perez later said he had stopped trucking for McIlvaine inDecember and was living off his income tax money. Vol. 8, pg. 1365. Perezalso said he was a trucker for Dingledine Transportation out of Urbana. Vol.8, 1363. Perez said the wound on his arm happened when he was shot inChicago, and that he didn't report it because he shot back. He was truckingin Chicago, and Perez said he shot a guy who was trying to rob him. Vol. 8,

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pg. 1359-1361,1419. Perez said he knows Cliff, the owner of the BeverageOasis, and that he talked to Cliff the next day after the robbery there. Vol. 8,pg. 1360. Perez said he doesn't know Cecil Howard. Vol. 8, pg. 1366. Perezsaid he'd never been to the Do Drop Inn. Vol. 8, pg. 1391. Perez admittedthat he told Debra to get rid of the .357. Vol. 8, pg. 1397.

Perez said that the deceased Do Drop Inn victim was told not to move,but he did move. Perez said :

Perez: Oh, to be honest, he was told not to move.

Detective: Um-hum.

Perez: And he moved. You know? He used the word `nigger' in there.And I ain't got to listen to a goddamn thing he got to say in there.

Detective: Okay.

Perez: It - it cost him his life. He moved. It's a sad situation.

Detective: Yes, it is. You feel regret for it?

Perez: I'll bet you - bet you - I thought about this shit every night. DoI got regrets? A whole bunch, man.

Detective: How did - how did it all go down.

Perez: Approached the building from the side. Way out front, walkedin the door, told everybody don't move, everybody get down on the floor.He said I ain't got to do a goddamn thing you say, nigger. Something to thateffect. Told him don't move don't look. He looked and moved and ran hismouth. It cost him his life. Vol. 8, pgs. 1415-1416. (Repeated Vol. 8, pgs.143 7-143 8, pgs. 1470-1471).

Perez begins admissions on the other robberies: Sugarbakers, Lantern,Oasis, 19`h Hole, Nite Owl. Vol. 8, pgs. 1423-1424. Perez admitted that inreference to the Oasis, he was shot and that he fired back. Vol. 8, pgs. 1426-1428. In reference to the Do Drop Inn victim, Perez said "I think I asked theman, where you hit? He said "Oh, you hit me good." Vol. 8, pg. 1439. The

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balance of the interview (State's Ex. 26) was played for the jury in aredacted version. (State's Ex. 89). Vol. 8, pgs. 1456-1472.

Detective DeWine identified the cassette recording ( State's Ex. 88) ofa phone call between Kerry and Debra Perez that Kerry Perez placed at theend of his interview with police. Recording played for the jury andtranscribed by the court reporter. Vol. 8, pg. 1473-1476. Perez told Debrathat he "told `em everything", that police treated him okay, and that he wasglad to get soda pop and cigarettes during the interview. Vol. 8, pgs. 1476-1499.

Detective DeWine identified a letter ( State's Ex. 90) from KerryPerez to Sherry Alspaugh. Vol. 8, pgs. 1501-1502.

Debra Perez Smith: Vol. 8, pgs. 1508-153 1. Ex-wife of Kerry Perez.Outside of jury's presence, Debra Perez stated her election to testify againstKerry Perez. Debra Perez stated that at the time of her testimony, she wasdivorced from Kerry Perez. Vol. 8, pgs. 1511-1513. On October 20, 2003,Debra was called to Keifer School on behalf of her son Robert Smith, whohad told police what he knew about Kerry Perez and the Do-Drop Innmurder. Debra met the police there and also told them what she knew. Debraalso consented to allow police to record three conversations she had withKerry Perez Vol. 8, pgs. 1514-1515. Debra identified records of her May 29,2002, purchase of a shotgun from Wal-Mart. ( State's Ex. 1) That shotgunwas at the house, but she doesn't know what became of it. Debra identifiedrecords of her February 11, 2003, of a Taurus revolver. ( State's Ex. 2)Debra identified State's Ex. 3 as the Taurus revolver she had purchased atMax's Pawn Shop and then later traded at Cesar Creek flea market.Identified the shotgun from the Beverage Oasis robbery (State's Ex. 6) asthe shotgun Kerry Perez obtained from his stepdaughter's grandfather. Vol.8, pgs. 1515-1519. Debra stated that she did home treatment for a gunshotwound to Kerry Perez's right arm that he received in mid-June 2002. Duringthe 2002-2003 period, Perez drove a white Taurus and a red T-top Camarothat had only the driver's seat. Identified the newspaper article ( State's Ex.82) of the Do-Drop Inn murder that caused Perez to say, while she was inthe room with her son Robert Smith and step-daughter Lindee, "Look baby,I made the front page." Vol. 8, pgs. 1519-1521.

Sherry Alspaugh: Vol. 9, pgs. 1537-1540 Sherry has a child withPerez named Lindee. Sherry identified a letter that Kerry Perez wrote to her

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while he was in jail. (State's Ex. 90) Relative to the Do-Drop Inn crime,while Perez was in jail, he told Sherry that "The man would not shut up, so Ishot him." Vol. 9, pgs. 1539-1540.

Lieutenant Brad Moos: Vol. 9, pgs. 1540-1543. Springfield police.Explained that the phone line in the Crimes Against Persons Unit iscontinuously recorded.

Anne Woodruff: Vol. 9, pgs. 1543-1545. Employee of the ClarkCounty Information System department. She maintains the Evercom systemfor recording calls placed by inmates of the Clark County jail. Woodruffidentified a CD (State's Ex. 91) as being the type of recording the Evercomsystem can produce of inmate calls.

Laurn Werner: Vol. 9, pgs. 1546-1548. Employee of the ClarkCounty Information System department. Identified State's Ex. 91 as the CDof jail calls made pursuant to the subpoena from the prosecutors office.

Sergeant Jeffrey Flores: Vol. 9, pgs. 1548-1558. Springfield police.After the interview between police and Perez that took place on November12, 2003, Perez made telephone calls in his presence to Cecil Howard andDebra Perez. Sgt Flores identified the CD of a phone call between KerryPerez and Cecil Howard ( State's Ex. 91), that he copied to a cassette tape.(State's Ex. 87).

Detective Darwin Hicks: Vol. 9, pgs. 1558-1564. Detective Hickslistened to the recording of the phone call between Kerry Perez and CecilHoward (State's Ex. 87), and knows one voice in that conversation to bethat of Cecil Howard. Detective Hicks also identified the ski mask ( State'sEx. 81 A) that he obtained from Debra Perez. Detective Hicks identified theoriginal note that stepson Robert Smith wrote to the counselor at Keiferschool. (State's Ex. 92).

Tape played of the telephone conversation between Kerry Perez andCecil Howard. Vol. 9, pgs. 1564-1574. Defense objections to plying of taperenewed. Vol. 9, pgs. 1565-1566. In the conversation, Perez to Cecil thatpolice have him "dead to right", and that "I done fessed up." Cecilcontinuously responds that he did nothing wrong and did not know to whatPerez was referring. Regarding the police, Perez said "They got the 20[gauge shotgun]. They got the fuckin' pictures of me at the Oasis, pictures of

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me at Sugarbaker's. They says they got my audio, my voice and everythingat the, uh, Do Drop."

Heather Williams: Vol. 9, pgs. 1574-1587. BCI firearms examiner.Williams examined the bullet recovered from the Do Drop Inn victim(State's Ex. 69A) against the Taurus .357 revolver (State's Ex. 3) earlieridentified by Debra Perez. Since the bullet was.a hollow point round, it wassignificantly deformed. Williams concluded that the Taurus 357 revolver(State's Exhibit 3) could not be excluded as having fired the bullet (State'sEx. 69A) into the Do Drop Inn victim.

Colloquy About State's Evidence: Vol. 9, pgs. 1587-1604. Juryinstructed about the stipulation that the letter to Sherry Alspaugh ( State'sEx. 90) was written by Kerry Perez. Vol. 9, pgs. 1592-1593. The newspaperstory (State's Ex. 82) was admitted, although the story itself was redacted,leaving the headline "Robbers Kill Man" and the photo of the scene visible.Vol. 9, pgs. 1599-1600. All State's exhibits admitted, except that thenewspaper story was redacted. The State rests. Vol. 9, pg. 1604.

Colloquy About Jury Instructions: Vol. 9, pgs. 1604-1614.

The Defense rests. Vol. 9, pg. 1614.

State's Closing Argument: Vol. 9, pgs. 1615-1642.

Defense Closing Argument: Vol. 9, pgs. 1642-1653.

State's Rebuttal Closing Argument: Vol. 9, pgs. 1653-1662.

Jury Charge: Vol. 9, pgs. 1662-1699.

Jury Verdicts: Vol. 9, pgs. 1701-1707. Guilty of aggravated murder(count 1); guilt of specification 1(robbery/principal offender); guilty ofspecification 2 (course of conduct).

Mitigation Phase

Colloquy About PSI: Vol. 10, pgs. 1709-1710. Date forcommencement of mitigation phase is set. During colloquy between the

32

Court and Perez, Perez declines a PSI and a mitigation psychologicalexamination. Counsel for Perez states "Based on our advice to the defendant,he waives both."

Pre-Hearing Colloquy: Vol. 11, pgs. 1712-1719. Court deniesdefense motion to merge aggravating circumstances. Court admitted limitedevidence in support of the aggravating circumstances. The Stateacknowledged that other bad acts evidence, apart from the Beverage Oasiscrime, are not part of the aggravating circumstances. Defense counselnotifies the Court that Perez will not make an unsworn statement. The Courtadvised Perez that he had a right to make an unsworn statement and Perezdeclined that right. Defense counsel responded that "I would represent toothat we discussed this with Mr. Perez on numerous occasions and as late asyesterday afternoon."

Preliminary Jury Instructions: Vol. 11, pgs. 1720-17256

State's Opening Statement: Vol. 11, pgs. 1725-1729

Defense Opening Statement: Vol. 11, pgs. 1729- 1731. Evidence ofmitigation already in the record. Perez's statement to police showsacceptance of responsibility and expression of remorse for the victim. Onemore witness will be Perez's stepfather, Ray Paris.

Ray Paris: Stepfather of Kerry Perez. Vol. 11, pgs. 1732-1738. Parissaid he was a Viet Nam veteran, injured during the war and confined to ahospital for about one year. Paris also coached little league baseball. Parismarried Kerry's mother, Mary Lee, who has been deceased for about 20years. Kerry was 4 years old when Paris first met the mother. Paris workedat a factor job for 33 years. Kerry's life from age 4 to 12 was "pretty good."Kerry's biological father was not involved, and Kerry's mother was intoprostitution and not involved in caretaking for Kerry. Paris looked afterKerry as best he could. Paris asked the jury to spare Kerry's life. Parisacknowledged that Kerry stayed with him until Kerry was 12 years old, andthat during that time Paris provided a good home for Kerry. Even after Kerrywas older that 12, Paris acknowledged that he was "watching out" for Kerry,and that Kerry knew that Paris would help him. Paris had other children, allof whom turned out well. Paris acknowledged that he was a good role modelfor Kerry.

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Defense Rests. Vol. 11, pgs. 1738-1739.

Colloquy About Jury Instructions: Vol. 11, pgs. 1739-1742

Colloquy Regarding Defense Mitigation Case: Vol. 11, pgs. 1742-1743. At the State's request, the Court inquired of the defense regardingtheir mitigation specialist and the defense mitigation psychologist. TheCourt noted it provided the defense with an opportunity for a PSI and anadditional Court mitigation psychologist. The Court also stated that ifrequested by the defense, it would have delayed the start of the mitigationphase. Defense counsel responded "Well, if we can break those down intotwo parts as to what the Court did the other day. We absolutely agree. Mr.Perez had a right to a presentence investigation and a mental exam, whichwe waived. As to whether or not we had a mitigation specialist and apsychologist, the record speaks for itself; and I don't think at this point or inany other point of the case it's the Prosecutor's business; and so I object toanything being put on the record like the Prosecutor's just done." Vol. 11,pg. 1743.

State's Closing Argument: Vol. 11, pgs. 1744-1750.

Defense Closing Argument: Vol. 11, pgs. 1750-1757.

Colloquy About Mitigating Factors: Vol. 11, pgs. 1757-1759.

State's Rebuttal Argument: Vol. 11, pgs. 1759-1768.

Jury Charge: Vol. 11, pgs. 1768-1783.

Jury Question: Vol. 11, pgs. 1784-1785.

The Court: We're on the record in case of State of Ohio v. KerryPerez. The time is 2:35. The jury's been deliberating and has sent aquestion to the Court which the Court has already shared withCounsel.

The question was: What was the date of Sugarbaker's, period, andthe time of the confession tape.

It's the suggestion of the Court with regard to the date ofSugarbaker's that I reply as follows: For the purposes of this phaseof the trial, you may only consider the aggravating circumstances

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that the Court has previously instructed you on. You may notconsider evidence of other acts, period.

Mr. Butz: (defense counsel) And that's a satisfactory responsefrom the Defendant's standpoint.

Mr. Schumaker: (prosecutor) State agrees, Your Honor.

The Court: And it's also the understanding of the Court that theState and the Defendant have agreed to supply the date of the tapeto the jury, that date being November 12, 2003. Is that correct?

Mr. Schumaker: That's Correct, Your Honor.

Mr. Butz: That is our agreement.

The Court: Okay. This is acceptable. Then I have written theseresponses on the note that the jury has given me, and I'll send itback with the Bailiff.

Mr. Schumaker: Thank you.

The Court: This hearing's adjourned.

Verdict and Polling: Vol. 12, pages 1791-1796.

State's Exhibits

State's Ex. 1: Winchester Model 1300 20 gauge shotgun from Wal-MartState's Ex. 2: Purchase records for a Taurus .357 caliber revolverState's Ex. 3: Taurus .357 revolverState's Ex. 4: Sale records for a Taurus .357 revolverState's Ex. 5: Purchase records for 2 High Point 9 mm pistolsState's Ex. 6: Shotgun recovered from Beverage Oasis robberyState's Ex. 7: Recording of 911 call from Beverage Oasis robberyState's Ex. 7A to 7NN: Photos of Beverage Oasis robbery (Except 7L)State's Ex. 700: Photograph of Cecil HowardState's Ex. 7PP: Photograph of Cecil Howard's backsideState's Ex. 7QQ: Photograph of Cecil Howard's backside

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State's Ex. 7L Shotgun shell from Beverage Oasis robberyState's Ex. 8: Shotgun shell from Beverage Oasis robberyState's Ex. 9: Shotgun shell from Beverage Oasis robberyState's Ex. 10A to 10 D: Live shotgun shells from shotgun from BeverageOasis robberyState's Ex. 11 to 11B: Print cards from the shotgun from the Beverage OasisrobberyState's Ex. 12: Shotgun shell wadding from Beverage Oasis robberyState's Ex. 13: Shotgun pellets from Beverage Oasis doorframeState's Ex. 14: 22 caliber shell casing from Beverage Oasis robberyState's Ex. 15: 22 caliber shell casing from Beverage Oasis robberyState's Ex. 16: 22 caliber shell casing from Beverage Oasis robberyState's Ex. 17: Shotgun shell wadding from Beverage Oasis robberyState's Ex. 18: Shotgun shell plastic end cap from Beverage Oasis robberyState's Ex. 19: 22 caliber shell casing from Beverage Oasis robberyState's Ex. 20: 22 caliber shell casing from Beverage Oasis robberyState's Ex. 21: 22 caliber shell casing from Beverage Oasis robberyState's Ex. 22: 22 caliber shell casing from Beverage Oasis robberyState's Ex. 23: 22 caliber shell casing from Beverage Oasis robberyState's Ex. 24: 22 caliber bullet from Beverage Oasis robberyState's Ex. 25: 22 caliber shell casing from Beverage Oasis robberyState's Ex. 26: Videotape of police interview with Perez (redacted)State's Ex. 26A: Videotape of police interview with Perez (unredacted)State's Ex. 27: X-Ray of Cecil Howard's mid-sectionState's Ex. 28: X-Ray of Cecil Howard's mid-sectionState's Ex. 29: X-Ray of Cecil Howard's mid-sectionState's Ex. 34: Fingerprint card from Cecil HowardState's Ex. 35A: Proprietor's pistol from Beverage Oasis robberyState's Ex. 35B: Proprietor's holster from Beverage Oasis robberyState's Ex. 35C: Proprietor's pistol clip from Beverage Oasis robberyState's Ex. 36: Door frame with pellet holes from Beverage Oasis robberyState's Ex. 37: Duct tape from shotgun handle from Beverage Oasis robberyState's Ex. 38A: Photo array for Beverage Oasis robbery (#3 is CecilHoward)State's Ex. 39: Photograph of Cecil HowardState's Ex. 40A: Video (non-audio) of 19`h Hole robberyState's Ex. 41A: Video (with audio) of Sugarbaker's robberyState's Ex. 42: Photo of Do-Drop InnState's Ex. 43: Photo of Do-Drop InnState's Ex. 44: Photo of Do-Drop Inn

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State's Ex. 45: Photo of Do-Drop InnState's Ex. 46: Photo of Do-Drop InnState's Ex. 47: Photo of Do-Drop InnState's Ex. 48: Photo of Do-Drop InnState's Ex. 49: Photo of Do-Drop InnState's Ex. 50: Photo of Do-Drop InnState's Ex. 51: Photo of Do-Drop InnState's Ex. 52: Photo of Do-Drop InnState's Ex. 53: Photo of Do-Drop InnState's Ex. 54: Photo of Do-Drop InnState's Ex. 55: Photo of Do-Drop InnState's Ex. 56: Photo of Do-Drop InnState's Ex. 57: Photo of Do-Drop InnState's Ex. 58: Photo of Do-Drop InnState's Ex. 59: Photo of Do-Drop lnnState's Ex. 60: Photo of Do-Drop InnState's Ex. 61: Photo of Do-Drop InnState's Ex. 62: Photo of Do-Drop InnState's Ex. 63: Photo of Do-Drop InnState's Ex. 64: Photo of Do-Drop InnState's Ex. 65: Police video of Do-Drop Inn crime sceneState's Ex. 66A: Ball cap from Do-Drop Inn victimState's Ex. 67A: Blood swab from Do-Drop Inn carpetState's Ex. 68A: Control sample swab for Do-Drop Inn crime sceneState's Ex. 69A: Bullet recovered from Do-Drop Inn victim after autopsyState's Ex. 70A: Sample of blood from the Do-Drop Inn victimState's Ex. 71A: Jacket from the Do-Drop Inn victimState's Ex. 72A: Sweatshirt from the Do-Drop Inn victimState's Ex. 73A: Red hooded sweatshirt from Do-Drop Inn victimState's Ex. 74A: T-shirt from the Do-Drop Inn victimState's Ex. 75A: Blue jeans from the Do-Drop Inn victimState's Ex. 76A: Leg brace from the Do-Drop Inn victimState's Ex. 76B: Socks from the Do-Drop Inn victimState's Ex. 76C: Right boot of the Do-Drop Inn victimState's Ex. 77: Autopsy photo of the Do-Drop Inn victimState's Ex. 78: Autopsy photo of the Do-Drop Inn victimState's Ex. 79: Coroner's drawing of bullet path from autopsy of the Do-Drop Inn victimState's Ex. 80: Written statement of Perez's step son, Robert Smith, toschool counselor

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State's Ex. 81A: Ski mask from Perez's houseState's Ex. 81B: Robbery mask from Perez's houseState's Ex. 81 C: Halloween mask from Perez's houseState's Ex. 82: Newspaper story about the Do-Drop Inn murderState's Ex. 83: Audio tape of November 12`h jail call between Kerry &

Debra PerezState's Ex. 84: Audio tape of October 24`h jail call between Kerry & Debra

PerezState's Ex. 85: Consent to Record form signed by Debra PerezState's Ex. 86: Rights waiver form signed by Kerry PerezState's Ex. 87: A tape cassette copy of State's Ex. 91State's Ex. 88: Audio tape of a jail call between Kerry & Debra PerezState's Ex. 89: Perez Video Interview, Part 2 (Redacted)State's Ex. 90: Letter from Kerry Perez to Sherry AlspaughState's Ex. 91: A CD of a telephone call between Kerry Perez and Cecil

HowardState's Ex. 92: The original of State's Ex. 80

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Office of the Ohio Public Defender Assistant State Public ... Perez was indicted by the Clark County...

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