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Court Affirms Death Sentence in ‘Drive-By’ Shooting That Killed Youngstown Infant
2004-0586. State v. Drummond, 2006-Ohio-5084.
Mahoning C.P. No. 03-CR-358. Judgment affirmed.
Resnick, Lundberg Stratton, O'Connor, and Lanzinger, JJ., concur.
Moyer, C.J., Pfeifer and O'Donnell, JJ., dissent.
Opinion: http://www.supremecourtofohio.gov/rod/newpdf/0/2006/2006-Ohio-5084.pdf
(Oct. 18, 2006) The Supreme Court of Ohio has affirmed the conviction and death sentence of John Drummond of Youngstown for the aggravated murder of 3-month-old Jiyen Dent Jr. in March 2003. According to testimony at his trial, Drummond and an accomplice, who were both members of the Lincoln Knolls Crips street gang, fired 11 rounds from an assault rifle and several more from a 9 mm handgun into the residence of the victims' parents and an adjacent house. The infant was struck in the head by one of the bullets while sitting in a baby swing in the Dents' living room.
In a 4-3 decision announced today, the Supreme Court rejected all allegations of legal and procedural error by the trial court advanced by Drummond as grounds for reversal of his convictions or reduction of his sentence.
Based on witnesses' descriptions of the car used in the shooting and its occupants, police traced the vehicle to Drummond and obtained a search warrant for his residence where they found multiple rounds of rifle ammunition of the same caliber used in the Dent shooting and a bulletproof vest. Based on this and other physical evidence and witness testimony, Drummond was charged with aggravated murder with two death penalty specifications: aggravated murder in the course of killing or attempting to kill two or more people, and aggravated murder of a child under 13 years of age. He also was charged with the attempted murders of the victim's parents and felonious assault.
In February 2004, a Mahoning County Court of Common Pleas jury found Drummond guilty on all counts and specifications. The jury recommended the death penalty, and the trial court imposed a sentence of death.
In today's majority decision, authored by Justice Judith Ann Lanzinger, the Court reviewed and rejected Drummond's claim that he was denied his Sixth Amendment right to a public trial when the trial court closed a portion of its proceedings to the public, including Drummond's family members. The judge granted a closure motion by the prosecutor and allowed only news media representatives to be present in the courtroom during the cross examination of one witness and the testimony of two others who were afraid of reprisals from gang members.
Justice Lanzinger acknowledged that the right to be tried in public is a fundamental freedom guaranteed by both the U.S. and Ohio constitutions which “should not be circumvented unless there are extreme overriding circumstances.” She noted, however that “(t)he right to a public trial is not absolute, and in some instances must yield to other interests, such as those essential to the administration of justice.”
Justice Lanzinger cited the U.S. Supreme Court's decision in Waller v. Georgia (1984), which she said established a four-part test that courts must use to determine whether closure of a courtroom is necessary: “the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.”
Applying that test to the circumstances of Drummond's trial, Justice Lanzinger wrote that the trial court's closure order satisfied the Waller criteria.
“First, the trial court's interest in maintaining courtroom security and protecting witness safety supported the trial court's limited closure of the courtroom. There had been a physical altercation between a spectator and courtroom deputies, and a second incident occurred in the judge's chambers. The trial court also stated that “the fear of retaliation expressed by various witnesses” was a basis for its action. In this regard, we acknowledge the dangerous nature of gang violence and the genuine need to protect witnesses testifying against gang members from the deadly threat of retaliation. … Second, the closure was no broader than necessary. The courtroom was closed only while Rozenblad was cross-examined and while Morris and Thomas testified. Spectators were readmitted afterwards. Also, the trial judge provided expressly that the media could remain in the courtroom during the testimony of all these witnesses. The media presence helped safeguard Drummond's right to a public trial,” wrote Justice Lanzinger.
“With respect to the third Waller factor, the record does not show that the trial court considered alternatives to closure. However, the partial closure of the courtroom only during the cross-examination of Rozenblad and the testimony of Morris and Thomas is narrower than full closure for the entire trial. … As to the final Waller factor of adequate findings, the trial court stated that there had been a physical altercation between spectators and courtroom deputies. The trial court also mentioned that another incident had occurred in the judge's chambers and that witnesses had expressed fear of retaliation by testifying in open court. … Although the trial court should have made additional findings to clarify the reasons for closing the court, the strength of the judge's actual findings must be evaluated in reference to the limited scope of the closure. By that standard, we conclude that the trial court's findings were adequate.”
The majority opinion was joined by Justices Alice Robie Resnick, Evelyn Lundberg Stratton and Maureen O'Connor.
Chief Justice Thomas J. Moyer entered a dissent, joined by Justices Paul E. Pfeifer and Terrence O'Donnell, in which he disputed the majority holding with regard to the partial closure of the trial. The Chief Justice wrote that in his view the closure was a “structural error” that violated Drummond's fundamental constitutional right to a public trial, and required reversal of his conviction and death sentence.
Quoting from the U.S. Supreme Court's holding in Rose v. Clark (1986) the Chief Justice wrote that “(u)nlike a garden-variety trial error, a structural error ‘transcends the criminal process' by depriving a defendant of those ‘basic protections [without which] a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.'”
Describing the majority's application of the four-part Waller test as “fatally flawed,” Chief Justice Moyer pointed particularly to the failure of the trial court to consider reasonable alternatives to closing its proceedings that could have preserved order in the courtroom and protected witnesses. He noted that the two specific individuals responsible for earlier altercations could have been barred from the courtroom rather than barring all spectators. “The trial court also failed to discuss alternatives such as enhancing courtroom security, screening spectators allowed to remain in the courtroom, or placing a screen between the witnesses and the spectators to conceal the witnesses from public view,” Moyer wrote. … “Taking these reasonable measures would have ensured courtroom security while maintaining the open courtroom that the Sixth Amendment requires.”
Contacts
Rhys Cartwright-Jones, 330.740.2330, for
the Mahoning County prosecutor's office.
Dennis DiMartino, 330.758.7313, for John Drummond.
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