Justice Moyer said the majority's opinion was 'fatally flawed.'
By MICHELE C. HLADIK
COLUMBUS -- A Youngstown man convicted in the death of a 3-month-old infant will stay on death row after the Ohio Supreme Court narrowly voted Wednesday to uphold his conviction and death sentence.
The 4-3 vote drew a gender line with Justices Judith Lanzinger, Maureen O'Connor, Alice Robie Resnick and Evelyn Lundberg Stratton in the majority. Chief Justice Thomas Moyer and Justices Terrence O'Donnell and Paul Pfeifer were the dissenting votes.
"We find nothing in the nature and circumstances of the offense to be mitigating," Justice Lanzinger wrote in the majority's opinion. "On the evening of March 24, 2003, [John] Drummond drove by the home occupied by [Jiyen] Dent, [Latoya] Butler, and their 3-month-old baby, Jiyen, and fired his assault rifle into the residence. One bullet killed 3-month-old Jiyen. Thus, Jiyen's murder was part of a course of conduct involving the murder of a child under 13 years of age.
"The aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt," she later continued. "Drummond's murder of 3-month-old Jiyen is a grave aggravating circumstance. So is his course of conduct in killing Jiyen and in attempting to kill Dent and Butler. In contrast, no substantial mitigation weighs against these aggravating circumstances. Thus, we hold that the death penalty is appropriate."
Drummond was convicted in the 2003 shooting death of 3-month-old Jiyen Dent Jr. During the drive-by shooting, multiple rounds from an AK 47 type assault rifle and a 9 mm handgun were fired into the Dent home. The infant's parents were home, but uninjured.
Earlier this year, Drummond's attorneys argued before the high court that his rights to a public trial were violated when the trial court cleared the courtroom of all family, friends and spectators and allowed evidence to Drummond's gang activity into the trial.
The majority of the high court disagreed and pointed out the court was cleared for security reasons that were stated by the judge during the trial.
"The 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," wrote Justice Lanzinger. "A trial judge has authority to exercise control over the proceedings and the discretion to impose control over the proceedings."
According to the decision, the judge acted on concerns of jury members and witnesses who testified in the case.
The decision said the news media presence and the short duration the family and friends could not be in the courtroom helped maintain Drummond's public trial rights while preserving security in the courtroom.
Chief Justice Moyer, writing for the dissenting votes, said, "I disagree with the majority's decision holding that Drummond was not denied his right to a public trial." He said the error was a structural error which deprived Drummond of his rights.
"In upholding the trial court's decision to close the courtroom on February 4, the majority places undue emphasis on the presence of representatives of the news media in the courtroom after it was closed," he wrote.
He said the majority's opinion was "fatally flawed." He also said there is little evidence to support the security issue or to show the judge considered other measures before closing the court room.
"The record provides no justification for excluding family members from the courtroom," Chief Justice Moyer wrote. "No evidence was presented showing that any family members posed a risk of disturbing the court or threatening any of the witnesses or jurors."
Youngstown attorney Dennis DiMartino and John Laczko represented Drummond before the high court. DiMartino and Laczko also argued before the Supreme Court that evidence of Drummond's involvement as a member of the Lincoln Knolls Crips street gang should not have been allowed into the trial.
Mahoning County prosecutors were not able to present oral arguments on the case because they did not file briefs with the high court before the deadline. Following the decision's release, DiMartino said he will urge his client to appeal the matter before the United States Supreme Court and he believes somewhere in the appellate process a court will find in his client's favor.
"I'm terribly disappointed I was not able to convince one more justice," DiMartino said.
Rhys Cartwright-Jones, assistant Mahoning County prosecutor, said he wasn't surprised with the overall decision and believes the "dissenters" wanted more specific reasons for the closing of court.