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Court Affirms Mother’s Conviction for Killing Son, Remands Death Sentence for New Mitigation Hearing

2005-2264.  State v. Diar, Slip Opinion No. 2008-Ohio-6266.
Lorain C.P. No. 04CR065248.  Judgment affirmed in part and reversed in part, and cause remanded.
Moyer, C.J., and Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2008/2008-Ohio-6266.pdf

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(Dec.10, 2008)  The Supreme Court of Ohio today unanimously affirmed the aggravated murder conviction of Nicole Diar of Lorain for the 2003 killing of her four-year-old son Jacob Diar. Based on the state’s concession that the trial judge committed reversible error by failing to give jurors a specific instruction prior to their penalty-stage deliberations, the Court vacated Diar’s death sentence and remanded the case to the trial court for a new mitigation hearing.

The Court’s 7-0 decision was authored by Justice Maureen O’Connor.

Jacob Diar’s charred body was found inside his mother’s home by firefighters after they put out a fire that investigators found had been deliberately set using gasoline as an accelerant.  A coroner’s examination found that Jacob had died of “homicidal violence of an undetermined origin” before the fire began.  While Diar told investigators that she had fled the house after awakening to find it full of smoke and flames, and had tried to reenter but had been driven back by heavy smoke, a medical examination found that her lungs showed no sign of smoke inhalation and her hair and clothing contained no soot or other fire residue.

Based on this and other evidence, including inconsistencies in Diar’s account of her actions prior to and during the fire, she was indicted for the aggravated murder of her son and multiple other charges including aggravated arson. Diar was convicted on all counts in a jury trial and sentenced to death.  As in all capital punishment cases, the trial court’s judgment and death sentence were subject to mandatory review by the Supreme Court of Ohio.

Writing for a unanimous Court in today’s decision, Justice O’Connor rejected or found moot 14 of the 15 assignments of error asserted by Diar’s attorneys as grounds to reverse her convictions or reduce her death sentence to a term of life imprisonment. The rejected assignments of error included a defense claim that prosecutors improperly asked a series of leading questions to witnesses not to elicit factual testimony from the witnesses but as a device to present the state’s theory of the crime to the jury. The Court also overruled a claim that the trial court improperly allowed the state to introduce prejudicial “other acts” evidence that Diar often left Jacob with babysitters and was observed drinking at a bar with friends on the night of Jacob’s funeral.

With regard to the remaining assignment of error, which challenged the propriety of the trial court’s jury instructions for the penalty phase of Diar’s trial, Justice O’Connor wrote: “Diar contends that the trial court erred by failing to instruct the jury that a solitary juror could prevent the imposition of the death penalty. During the parties’ discussion on jury instructions, the defense requested an instruction that if a single juror ‘concludes that the aggravating circumstances do not outweigh the mitigating circumstances, beyond a reasonable doubt, then [the jury must] go down to life without parole.’ The trial court refused to give this requested instruction.” 

“In (State v.) Brooks (1996), this court held that it is error for a trial court to require a jury to unanimously reject a death verdict before considering one of the life sentence options. Brooks reasoned that ‘R.C. 2929.03(D)(2) [addressing imposition of a sentence for aggravated murder] contains no limiting language as to when a jury may contemplate a life sentence.’ Accordingly, when the jury cannot unanimously agree on death as punishment, it properly considers one of the alternative sentences. As a result, Brooks counseled courts to advise jurors in capital cases that ‘a solitary juror may prevent a death penalty recommendation by finding that the aggravating circumstances in the case do not outweigh the mitigating factors.’”

“A trial court’s failure to provide the solitary juror instruction has not resulted in reversal in other capital cases. ... Nevertheless, the state has elected to concede that the trial court’s failure to provide such an instruction constitutes error, given the totality of the specific circumstances, and requires that the cause be remanded to the trial court for a new mitigation hearing. We accept the state’s concession of error.  Accordingly, we vacate Diar’s death sentence and remand the cause for a new mitigation hearing.”  

Anthony Cillo, 440.329.5393, for the state and Lorain County prosecutor’s office.

Linda E. Prucha, 614.466.5394, for Nicole Diar.