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Ohio Supreme Court affirms death sentence for teen’s murderer
DAN TREVAS
Supreme Court
Public Information Office
Published: May 24, 2018
The Ohio Supreme Court took into account the fact that a man who plotted to rob and kill a childhood friend had just turned 19 years old at the time of the murder, but that was not enough to reverse the death penalty he received from a Warren County court.
The Supreme Court unanimously affirmed the 2014 death sentence of Austin Myers, who, along with Timothy Mosley, strangled and stabbed to death 18-year-old Justin Back. The Court rejected Myers’ 18 objections, called propositions of law, to his conviction and sentence. The justices independently weighed the aggravating circumstances against mitigating factors, such as Myers’ age, a history of depression, and a lack of criminal record, before upholding the punishment.
Writing for the Court majority, Justice R. Patrick DeWine noted that Myers claimed he deserved a lesser penalty because Mosley, who had actually stabbed Back to death, had accepted a plea bargain that resulted in a sentence of life imprisonment. Justice DeWine wrote that it was Myers’ idea to kill Back, that Myers had planned the murder with Mosley, and that Myers had actively participated, including restraining Back, as Mosley strangled and stabbed him.
“We find that the mitigating factors collectively deserve, at most, modest weight in this case. Accordingly, we find that the aggravating circumstance outweighs the mitigating factors beyond a reasonable doubt,” Justice DeWine concluded.
Chief Justice Maureen O’Connor and Justices Terrence O’Donnell, Sharon L. Kennedy, Judith L. French, and Patrick F. Fischer joined the opinion. Eleventh District Court of Appeals Judge Cynthia W. Rice, sitting for former Justice William M. O’Neill, sided with the justices.
Two Plan to Rob Safe
The events leading to Back’s murder began when Myers suggested to Mosley that the two could make money by robbing either a drug dealer Myers knew or Back’s stepfather, Mark Cates. Myers had once lived near Back in Waynesville and had attended seventh and eighth grades with him. Back and Myers had been friends until Back’s mother told him he could no longer be around Myers. Myers told Mosley that Cates had a safe containing money and a gun.
Mosley and Myers drove to Back’s home in January 2014. Because Back was home, the two decided not to commit the robbery at that time and instead visited with Back for 15 to 20 minutes. They left and discussed a plan about how to get the money. Mosley later testified that Myers suggested killing Back. After unsuccessfully attempting to get materials to poison Back, Myers and Mosley went to Mosley’s house, where the two continued to work on a plan with Mosley jotting down their ideas in a small notebook.
The pair decided to strangle Back with a wire garrote and take the safe. They planned to take items of Back’s with the idea of making it seem as though Back had taken the safe and ran away. Mosley stated that Myers also suggested killing Cates, but Mosley rejected the idea because it involved more work and greater risk. The two bought galvanized steel and metal rope cleats to make the “choke wire,” as Mosley referred to it.
The next day they returned to Waynesville and found Back home alone. The three talked for a while, and when Back offered them something to drink, they followed him into the kitchen. As Back bent down into the open refrigerator, Mosley looped the wire over Back’s head from behind and pulled tight. Myers grabbed Back to restrain him, and all three fell to the floor.
Mosley was not able to get the garrote around Back’s neck and, as Back struggled for his life, he repeatedly asked “why” and pleaded for Myers and Mosley to stop. Realizing the wire had missed Back’s throat, Mosley pulled out a large pocketknife and stabbed Back in the back, then in the chest, as Myers held Back.
Pair Try to Cover Up Killing
After killing Back, Mosley and Myers found the safe, which was unexpectedly locked, and a loaded handgun Cates owned. They cleaned the blood from the home, ransacked it, and took the safe, the gun, some jewelry, and credit cards. They placed Back’s body in the trunk of Myers’ car. Myers took $100 in cash from Back’s wallet. When the two managed to get the safe open, they found paperwork, loose change, bullets, and gun accessories, rather than the $20,000 Myers had expected.
The two decided to hide Back’s body behind a log in a field near “Crybaby Bridge” near the village of Gratis in Preble County. Myers poured ammonia and septic enzymes onto the corpse with the expectation it would decompose more quickly in the cold winter weather. Using the gun taken from the house, Myers then fired two shots into Back’s body.
Later that afternoon, Cates returned home from work to discover items in the home had been moved and his safe and gun were missing. He tried to contact Back by phone but found Back’s cell phone in the house along with shoes that Back always wore to go out. He and his wife called the police. During the investigation, a neighbor reported seeing a car leave the home. Cates gave investigators a description that matched the car Myers had driven when visiting the house the day before.
Plot Revealed During Questioning
Warren County sheriff’s detectives notified surrounding law enforcement of Myers’ car, and police in Clayton located it. The police detained Myers at Mosley’s home.
Warren County detectives interviewed Myers the next morning at the Clayton police station, and he denied knowing anything about Back’s disappearance or the burglary. Myers was taken back to Mosley’s home, and Mosley was taken to the police station for questioning. After questioning Mosley and another man who was friends with the pair, Myers and Mosley were arrested, and eventually starting telling the investigators what happened.
Myers admitted being at Back’s home when Mosley stabbed Back and said he had no idea Mosley was going to kill Back. He also stated it was Mosley who shot Back’s body. When police interviewed Mosley again, he confessed, telling the same story he would later tell at Myers’ trial. When interviewed again, Myers admitted to shooting the body, acknowledged he bought the materials to make the garrote, and denied that he restrained Back during the murder.
Preble County sheriff’s deputies discovered Back’s body, and Mosley and Myers were charged with murder. Myers was indicted on nine counts, including aggravated murder with prior calculation and design and aggravated murder-felony murder. Each of those counts included three-death penalty specifications.
Mosley’s Plea Bargain Weighs on Myers
Shortly before the start of Myers’ trial, Mosley agreed to a plea bargain in which he received a life sentence without the possibility of parole in exchange for testifying in Myers’ case. The jury found Myers guilty of all charges, and prosecutors elected to proceed to the penalty phase of the trial on the aggravated murder with prior calculation and design with an aggravated-robbery specification. The jury recommended a death sentence, and the judge imposed it along with prison sentences for the noncapital counts.
Among Myers’ objections to his conviction and sentence were the timeliness of the disclosure of state’s plan to call Mosley as a witness, the introduction of Mosley’s notebook as evidence, and the disparate sentences the two men received.
Myers’ attorney complained that the prosecutor was late in disclosing evidence that would benefit Myers, including that Mosley was going to testify. The defense also challenged the introduction of Mosley’s notebook in which he wrote notes about supplies, such as “crowbar,” “wire,” and “duct tape,” and notes about the plan, including “strangle,” “no mess,” and “woods, no public.”
The prosecutor maintained that all discovery material was turned over as soon as it became available to the state and that Myers’ attorney was told about Mosley’s planned testimony as soon as Mosley agreed to the plea bargain. The prosecutor did not know about the notebook until Mosley was being prepared for testifying. Mosley’s family located the notebook two days before the trial. The prosecutor tried to email photographs of the notebook to the defense attorney the next day.
The opinion stated that Ohio court rules give courts discretion to regulate discovery. The trial court had not abused its discretion when it ruled that any evidence turned over less than a week before the trial would not be admitted unless there was a hearing outside of the presence of the jury to determine if the evidence should be admitted and that the notebook was admissible.
Myers argued that he was prejudiced by the late disclosure of Mosley as a witness. Myers maintained that the use of Mosley as a witness would be favorable to Myers “because Mosley had no credibility as a witness due to his receiving a plea bargain with the State on the eve of trial which took the possibility of the death penalty off the table and instead provided for life imprisonment without the possibility of parole in exchange for testifying against Austin Myers.”
But the Court concluded that Mosley’s testimony, which detailed the plan, the murder, and the cleanup, was not favorable to Myers. Moreover, the Court observed only a complete failure to disclose the exculpatory evidence, not the delay of it, would have violated Myers’ constitutional rights.
Myers’ Questions Fairness of Sentence
Myers also contended that the death sentence constitutes cruel and unusual punishment in violation of the U.S. Constitution’s Eighth Amendment because he received a harsher sentence than Mosley and he was an “immature adolescent with behavioral issues.”
The Court noted that the death penalty is prohibited for certain categories of defendants, such as those under 18 years old and those who suffer from an intellectual disability. Although Myers argued the new developments in brain science indicate 18 is not the “proper cut off point for the death penalty,” he did not propose that exclusion for those under 18 be extended to 19-years-olds. Instead, Myers argued that the combination of a young age and his mental health issues, which included depression, made the death penalty excessive in his case. The Court found that Myers did not have a mental health issue that would exclude him from receiving the death penalty and concluded the sentence did not violate the Eighth Amendment.
The Court also rejected the claim that the penalty was excessive because Mosley was more responsible for Back’s death because he stabbed him. The opinion noted that the Court has ruled that giving a lesser penalty to the actual killer does not preclude another participant from receiving the death penalty. The Court stated that “the evidence of Myers’ extensive involvement in the planning and execution of Back’s murder belies” the claim that Mosley was more responsible for the death.
The case is cited 2014-1862. State v. Myers, Slip Opinion No. 2018-Ohio-1903.