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IN THE COURT OF COMMON PLEAS

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HAMILTON COUNTY, OHIO

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- - STATE OF OHIO,

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Plaintiff,
vs.
RAYMOND M. TENSING,
Defendant.

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) CASE NO: B-1503961
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- - -

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TRANSCRIPT OF SIDEBAR CONFERENCES

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HELD DURING THE RAYMOND TENSING TRIAL

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- - -

 2
June 7, 2017

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(The following was held at

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sidebar.)

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THE COURT:

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MR. TIEGER:

Go ahead.
Judge, I mean, if

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the record could reflect he's excused an

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African-American male juror.

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with Batson, you know, we've got to show

And I know

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a pattern, but I would ask the Court to

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ask the Defense team what the

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race-neutral reason was for excusing

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him.
THE COURT:

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need one at this point.
But if you would like one, you

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I don't think they

certainly can.
MR. MATHEWS:

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I will.

And I

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would argue that Batson does not apply

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to the case the way I read it, number

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one.

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response to the questions about his DUI

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conviction, and he mentioned that he was

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stopped by law enforcement for speeding

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and got into an argument, a verbal

But race-neutral reason is the

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altercation, with him that resulted in

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some racial epithets being thrown.

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he had what I considered a very negative

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opinion of law enforcement.

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THE COURT:

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He's excused.

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MR. TIEGER:

And

Thank you.

And I think Batson

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does apply to the Defense.

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say he could be a fair juror, so if you

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could just note my objection.
THE COURT:

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And he did

Well, he's excused.

Okay.
(Sidebar concludes.)

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(The following was held at

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sidebar.)

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THE COURT:

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MR. TIEGER:

Go ahead.
Judge, I think this

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is getting to be a pattern now of

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excusing minorities.
And she was an extremely fair

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juror.

She was funny, she had banter

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back with Mr. Mathews, laughing and

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joking about different things.

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absolutely said that she can be fair.

She

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She could sign all the verdict forms,

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and I just don't see any race-neutral

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reason that he would have to bump her.
THE COURT:

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Mr. Mathews, your

response.
MR. MATHEWS:

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My first response

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is, number one, I don't think that we're

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required to state a reason.

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I didn't like her answers on the

Number two,

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questionnaire.

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but I'll get specific and say that she

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indicated she watched the video, she had

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formed an opinion, but she could set

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that aside.

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shooting was not justified from what she

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saw on the video.

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having watched the trial, she has an

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opinion in reference to guilt or not

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guilty.

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her responses.

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I'm sure Mr. Tieger did,

She indicated she felt the

She said she -- after

And I don't like the rest of

THE COURT:

Okay.

She'll be

excused.

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I'm noting your objection.

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MR. TIEGER:

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Judge, and I think

there are a number of people that are on

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the jury that have had same or similar

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answers; that they've seen the video and

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had formed opinions that they can set

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aside.
THE COURT:

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I know, but we're

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dealing with a very unique group of

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people, and very few of them have not

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heard about this.

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three people who haven't heard about it,

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I think we have maybe

so -MR. TIEGER:

Judge, if he tries

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to excuse another African-American

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juror, I would hope that the Court would

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question that pretty severely.

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THE COURT:

Okay.

All right.

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MR. TIEGER:

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(Sidebar concludes.)

Thank you.

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(The following was held at
sidebar.)

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THE COURT:

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MR. TIEGER:

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THE COURT:

Okay.

Go ahead.

What's your feeling?
Same thing one, one;

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two, two; three, three.

You have

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already done these guys for cause.

If

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we get somebody up for cause, then we'll

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stop.
MR. TIEGER:

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Are you saying if we

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do, let's say, take one, we can take any

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one of the first four, take any one of

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these first four?

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THE COURT:

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Any of the

four.
MR. TIEGER:

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Yes.

Then the fifth one

would take their spot?
THE COURT:

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I don't have an

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objection to that.

Or do you want to

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start with the first one?

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MR. TIEGER:

I don't think you

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have to limit yourself to the first one.

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I just want to make sure that we're

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good.

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just with regard to these first four.

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So I get a bump.

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The fifth alternate would take -- I

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think everybody would move up one.

We're talking about our bumps

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THE COURT:

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MR. TIEGER:

Let's say we take one.

Right.
If we bumped

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Number 1, that person wouldn't take

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Number 1's spot.

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THE COURT:

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Right; just move this

way.
THE BAILIFF:

Everybody would

slide up.

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MR. TIEGER:

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MR. MATHEWS:

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THE COURT:

Is that right?
Yes, yes.
That way we know we

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are going to get the ones who are in

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line next.

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MR. TIEGER:

Right.

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THE COURT:

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(Sidebar concludes.)

Okay.

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June 9, 2017

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(The following was held at
sidebar.)
THE COURT:

We're here back on

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the record with the Prosecution's next

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witness.

What is her name?

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MR. TIEGER:

Alicia Napier.

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THE COURT:

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Ms. Napier, it's my understanding

Alicia Napier.

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you do not want to be photographed.

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that right?

Is

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ALICIA NAPIER:

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THE COURT:

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Right.

State your reason for

the record for that.
ALICIA NAPIER:

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Just don't want

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to be noticed outside in the public

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because I have been -- I have been in

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incidents where I've been seen at the

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gas station when I was pumping gas with

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my son and I've had looks and stuff.

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You know, on TV and stuff.

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didn't want to be noticed, or whatever.
THE COURT:

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Okay.

I just

Are you in

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fear for your safety?

Is that your --

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ALICIA NAPIER:

That's the main

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reason why I didn't want to be.
THE COURT:

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Counsel, any

questions?

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MR. TIEGER:

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THE COURT:

No, Your Honor.
I'll instruct them

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not to film you for your testimony,

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okay?

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Okay, thank you.

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ALICIA NAPIER:

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Thank you very

much.
(Sidebar concludes.)

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(The following was held at

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sidebar.)
THE COURT:

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Your response to

that?
MR. MATHEWS:

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Well, I was just

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summarizing what I thought I just heard

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her say, that based on her experience,

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she thought it was justified.
THE COURT:

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In my opinion, that

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can be brought in because she had an

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opinion, and they typically will provide

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the opinion to the Prosecutor's Office,

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and she did say she gives input to the

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Prosecutor's Office.
MR. TIEGER:

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Judge, I mean, I --

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I would be -- it would be extremely

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improper of me ever to ask in a murder

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case of a homicide detective, Do you

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think he did it?
THE COURT:

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You can never -But that's what she's

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saying.

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her input was to the prosecutor.

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You're asking -- she said what

MR. TIEGER:

No; that wasn't the

question.
THE COURT:

I thought that was

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the question.
MR. MATHEWS:
she said.
MR. TIEGER:

Judge, we can have

Colleen read back the question.
(The court reporter read back the

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pending question.)

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MR. TIEGER:

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I summarized what

I mean, I can never

ask anybody what your feelings are

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whether or not he did it.

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ask that internally.

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opinion as to whether something -- it's

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a legal opinion.

I mean, that's her

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MR. MATHEWS:

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MR. TIEGER:

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THE COURT:

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(Sidebar concludes.)

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I could never

I'll withdraw it.
Thank you.
Okay.

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June 12, 2017

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(The following was held at

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sidebar.)
THE COURT:

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Go ahead,

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Mr. Mathews.

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this in front of the jury.

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MR. MATHEWS:

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I didn't want you to say

Right.

Go ahead.
My

objection to 2-A and -B are that I

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believe Officer Pham is going to say

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that that depicts the location of where

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the car ended up at Rice and Valencia.

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They also have the body of Sam DuBose

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laying in the street, and I don't think

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that they need the body of Sam DuBose

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laying in the street to show where the

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car ended up.
THE COURT:

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They have a

face photo too.
MR. MATHEWS:

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I'm going to get to

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-E; I think is highly prejudicial and

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inflammatory, as I think -A and -B are,

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with reference to the body laying in the

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street.

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THE COURT:

Mr. Tieger, what is

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the point of him -- what is the point of

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questioning with regard to these photos

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for this witness?
MR. TIEGER:

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Judge, I think it

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would assist the jury in understanding

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the crime scene as it unfolded that

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evening and what he saw and what he did.

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So I think it's definitely important to

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help him explain his testimony and

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assist them in understanding it.
I know that -- I know in the last

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trial -THE COURT:

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Explain to me the

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understanding of his body being covered

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laying outside the car and his face

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being all bloodied, I mean, what does

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that show with regard to that testimony?
MR. TIEGER:

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I mean, it

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identifies him as being the one that was

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at the crime scene.

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MR. MATHEWS:

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that.

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THE COURT:

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MR. TIEGER:

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I will stipulate

Okay.
And I know at the

last trial, the Court -- not that you're

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bound by this at all -- excluded -E but

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allowed -A and -B.

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THE COURT:

I'm going to exclude

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all three for the time being.

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they may come in at another point, but

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not right now.

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MR. MATHEWS:

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(Sidebar concludes.)

I mean,

Thank you.

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June 14, 2017

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(The following was held at
sidebar.)
THE COURT:
objecting?

Okay, why are you

What is your objection?

MS. DEGRAFFENREID:

Because he's

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trying to show that he would be charged

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with a felony, or something, to make

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some insinuation.

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THE COURT:

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officer?

Is this guy a police

I couldn't tell.

MS. DEGRAFFENREID:

No; he's a

lab technician.
THE COURT:

So he wouldn't know.

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MR. MATHEWS:

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But he testified he

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must know the weight.

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tested enough to get up to the maximum

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charge we could get, which is over

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200 grams.

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talking about, the maximum charge.

So I want to know what he's

THE COURT:

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He said, I only

So I guess you have

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to explain this to me a little more.

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The analysts are the ones who -- they

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weigh it, they figure out what's going

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on, and then they give it to the police

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department for the police department to

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give the charges?
MR. MATHEWS:

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Yes.

If something

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is submitted to them, they take it in,

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they weigh it, and in this case the

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difference from one degree of felony to

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the next is -- if it's over 200 grams,

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it's a felony, but it's a lesser degree

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unless it's over 1,000 grams.

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knows there wasn't 1,000 grams, but he

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knows -- he weighed more than 200

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because that's what would result in a

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felony.

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THE COURT:

Well, he

Ms. DeGraffenreid?

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MS. DEGRAFFENREID:

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He wanted to

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insinuate that there was some felony

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charge.

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marijuana was in the car when this all

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occurred, so whether it would be a

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felony or a misdemeanor charge doesn't

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matter.
THE COURT:

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Tensing didn't even know the

Let's stick to why

can't he answer that?

He's not saying

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he would have been charged with it.

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sounds to me like he's simply giving the

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levels.
MR. MATHEWS:

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That's exactly

right.
THE COURT:

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It

I'm going to overrule

the objection.
(Sidebar concludes.)

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(The following was held at

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sidebar.)
THE COURT:

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We're on the record

outside the presence of the jury.
Dr. Looman is here to testify

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from -- she works for the Coroner's

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Office.

She does not wish to be

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photographed or videoed at this time.

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Any questions --

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Is that correct?

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DR. LOOMAN:

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THE COURT:

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That's correct.
And your reasoning

for that, Dr. Looman?
DR. LOOMAN:

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I'd rather not end

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up on YouTube, which happened the first

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time.

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THE COURT:

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Do you have a fear of your

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safety?

Any concerns for your safety?

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DR. LOOMAN:

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MR. MATHEWS:

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I see.

No.
Judge, I have no

objection to her not being photographed.
THE COURT:

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valid reason.

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for.

I just have to have a

That's what I'm looking

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Mr. Tieger?

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MR. TIEGER:

I mean, I think she

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was honest with the Court, Judge.

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just doesn't want to be --

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THE COURT:

She

I have no objection

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to Counsel, so hopefully that will

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suffice.

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You will not be photographed.

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DR. LOOMAN:

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(Sidebar concluded.)

Okay.

Thank you.

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(The following was held at
sidebar.)
MR. TIEGER:

Judge, these are

photos, if you want to see them.
THE COURT:

So what's your

objection?
MR. MATHEWS:

Judge, my objection

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is that the photos are highly

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prejudicial, inflammatory, and serve no

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useful purpose.

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he died as a result of the gunshot, and

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I don't see where they add anything of

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probative value to her testimony.

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She's already testified

MR. TIEGER:

Judge, and I think

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they assist Dr. Looman in explaining her

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testimony and also assist the jury in

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understanding --

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THE COURT:
to show that?

Do they really have

Come on now.

MR. TIEGER:

Judge, these were

all admitted in the last trial, so I'm

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just bringing you what was admitted last

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time.

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MR. MATHEWS:

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MR. TIEGER:

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THE COURT:

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does this tell me?

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MR. TIEGER:

Over objection.
I understand that.
I don't know.

What

Seriously.
It will just show

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the gunshot wounds, Judge, and how they

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affected the skull and the brain.
THE COURT:

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We already know he

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died.

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but she already said he died

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instantaneously.

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add insult to injury?

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16

I mean, I don't mean to be flip,

Do we really have to

MR. TIEGER:

This is evidence to

show what people testified to.

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THE COURT:

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Don't keep it up there long.

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MR. MATHEWS:

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They're admitted.

Please note my

objections.

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THE COURT:

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(Sidebar concluded.)

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Yes.

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(The following was held at
sidebar.)
THE COURT:

I'm really torn about

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these last couple pictures.

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warn them, and they better be up there

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for a second.

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MR. TIEGER:

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THE COURT:

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You need to

Sure, Judge.
Make sure they're

prepared for that, because I don't see

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those being -- I can't -- I just -- I'm

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struggling to allow those in, so you

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better make sure they're up for a

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limited time and they're ready for it.

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MR. MATHEWS:

Again, I'll take

one more opportunity to object.
THE COURT:
have those?

Why does she need to

They're -- come on.

MR. TIEGER:

Judge, again, the

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bullets went through the head and

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through the brain.

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THE COURT:

She can show that

with the other picture of the head.
You know what?
exclude those.

I'm going to

I don't want those up.

(Sidebar concluded.)

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(The following was held at

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2

sidebar.)
THE COURT:

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Okay, go ahead,

Mr. Tieger.
MR. TIEGER:

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Judge, I think we're

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getting very close to what the Court had

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already ruled, and I know that there's a

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couple of drugs in his system.

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like an antifungal and the other is like

One is

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an antibiotic.

There were two drugs,

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and I think there was some marijuana

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found.

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THE COURT:

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MR. TIEGER:

Okay.
I think there was a

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hearing last time that was actually on

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the record with Mr. Topmiller that was

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at least describing the marijuana, and I

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would ask that maybe after court today,

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the Court could look at that, because I

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don't know where Mr. Mathews is going

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with this, but --

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THE COURT:

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Well, if he had drugs

in his system, that's admissible.
MR. TIEGER:

Well, what

Mr. Topmiller would say is --

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THE COURT:

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MR. TIEGER:

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Who is Mr. Topmiller?
He's actually the

one that did the tests.

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THE COURT:

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MR. TIEGER:

Oh; got it, got it.
But he said, Judge,

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with the marijuana, that there was

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marijuana in his system, but when

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somebody dies and they didn't take the

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blood for, like, 20 hours after he died,

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that even if you had smoked days and

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days before, when you die, the blood

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changes, and that could give a false

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positive for what was actually in the

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blood.

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THE COURT:

Can she answer that

16

question if you ask her that on

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redirect?

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MR. TIEGER:

I don't think she

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can because that's not her area of

20

expertise.

21

time in front of Judge Shanahan, and I

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know you're not bound by her rulings,

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but Judge Shanahan excluded it, the

24

marijuana in his system, and I would ask

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that go also for the antibiotic and

And they had a hearing last

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antifungal, because we're getting into

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what the Court had ordered.
THE COURT:

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Well, they don't know

4

what it's for unless she says what it's

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for.

6

MR. TIEGER:

7

MR. MATHEWS:

Still.
Number one, I don't

8

think there's been a ruling made in this

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case, in this trial.

10

THE COURT:

11

And I get his argument, but what

12

No, it hasn't.

is your reasoning for this?
MR. MATHEWS:

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Well, again, he --

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if the toxicology report shows that he

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had marijuana in his system -- and I

16

agree Dr. Topmiller testified last time

17

that --

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MR. TIEGER:

19

MR. MATHEWS:

In limine.
In limine.

-- that

20

upon death, the metabolites get

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redistributed from the fat into the

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blood, and there's no way to know

23

accurately what the level is, but it

24

still shows it's in his system.

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THE COURT:

Could you clarify

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that through her?
MR. TIEGER:

2

Can you clarify?
Judge, I would ask

3

that -- basically, he -- there can be no

4

scientific opinion as to whether there

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was any kind of impairment.

6

smoked a week before and it's totally

7

out of his -- it's in his metabolite.
MR. MATHEWS:

8
9

Maybe he

I'm not trying to

prove that there was impairment, I'm

10

just trying to prove there was marijuana

11

in his system.

12

MR. TIEGER:

13

relevance of that, Judge.
THE COURT:

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15

I don't see the

Well, it could affect

his judgment.
MR. TIEGER:

16

Well, no, because it

17

wouldn't, because nobody could say that

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it would have had an effect because the

19

blood was taken too long after his

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death.
And I also ask to exclude the

21
22

antibiotic and antifungal medication.
THE COURT:

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Oh I don't care about

24

that.

No one knows what that's for.

25

wouldn't have known unless you guys

I

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would have told me.

2

Okay.

All right.

Is what he's

3

saying true about this guy and what this

4

guy said without me reading it?

5
6
7

MR. MATHEWS:

It's not that long

to read, but Megan -THE COURT:

I'm not talking about

8

Megan's ruling; I'm talking about that

9

doctor, or whoever he is.

10

MR. MATHEWS:

I have subpoenaed

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Dr. Topmiller and he's supposed to be

12

here tomorrow.

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14
15
16

THE COURT:
questions.
MR. MATHEWS:

THE COURT:

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going to be here.

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24
25

You can read that

tonight, and we can do it tomorrow.

17

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You can ask him these

That's easy, if he's
That's much easier.

The objection will be held in
abeyance, for the record.
(Sidebar concluded.)

 25
June 15, 2017

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4

(The following was held at
sidebar.)

5

THE COURT:

Hi, sir.

6

NATHAN ASBURY:

7

THE COURT:

Hello, Judge.

We're on the record

8

at sidebar, prior to starting the

9

jury-in-progress again.

10
11

Mr. Mathews has brought on
Sergeant --

12

NATHAN ASBURY:

13

THE COURT:

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15

Nathan Asbury.

-- Nathan Asbury.

And he wishes not to be filmed.
What is the reason for this, so

16

we can put it on the record.

17

NATHAN ASBURY:

I'm currently in

18

a plainclothes assignment.

We operate a

19

lot of undercover and use a lot of CIs,

20

and we have current investigations that

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if I got put on TV would probably

22

jeopardize some of the safety of the

23

officers.

24

THE COURT:

That's good.

25

Any objection from either party?

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MR. TIEGER:

2

MR. MATHEWS:

3

THE COURT:

4

We'll keep you unfilmed.

5

No, Judge.
No objection.
Okay, good.
You'll

be heard, though, you know.

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NATHAN ASBURY:

Yes, ma'am.

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THE COURT:

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(Sidebar concluded.)

Okay.

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June 16, 2017

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(The following was held at

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sidebar.)
THE COURT:

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Let's stop this.

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Please.

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this jury doesn't need to hear this.
MR. MATHEWS:

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This is too much for the --

I understand,

Judge.
THE COURT:

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It's not going to

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make anybody feel better about anybody's

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side, all right?

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upset.
And you guys are doing a great

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All it does is make me

job.

Just keep it where it is.
And they can see what you think

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you're seeing, okay?
MR. TIEGER:

That's fine.

you, Judge.
(Sidebar concludes.)

Thank

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1

CERTIFICATE

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I, COLLEEN R. O'CONNELL, the

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undersigned, a Registered Diplomate Reporter for

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the Hamilton County Court of Common Pleas, do

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hereby certify that at the same time and place

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stated herein, I recorded in stenotype and

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thereafter transcribed the within 27 pages and

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that the foregoing Transcript of Proceedings is

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a true, complete, and accurate transcript of my

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said stenotype notes.
IN WITNESS WHEREOF, I hereunto set my
hand this 25th day of July, 2017.

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Colleen R. O'Connell
Registered Diplomate Reporter
Court of Common Pleas
Hamilton County, Ohio