An Akron man sentenced to death in the fatal stabbing of his estranged girlfriend had ample opportunity during his trial to assert his desire to testify, but failed to do so, the 9th District Court of Appeals ruled Wednesday.
Clarence Fry Jr. claimed he wanted to testify in his capital murder trial in 2006 but wasn’t permitted to take the stand because his attorneys advised against it.
Patricia Cosgrove, a visiting judge in Summit County Common Pleas Court, held hearings on Fry’s claim in 2016, but ruled against Fry. He appealed to the 9th District Court, which agreed with Cosgrove.
“If Mr. Fry changed his mind and once again wished to testify, regardless of the decision he conveyed to counsel, it was incumbent upon him, at the very minimum, to alert the trial court of either his desire to testify or of any disagreement with counsel regarding his right to testify,” Judge Tom Teodosio wrote in the 9th District’s decision. “By his own admission, and as observed by several witnesses, Mr. Fry failed to do so at any point during the proceedings.”
Fry, 59, was convicted and sentenced to death in the 2005 stabbing death of his estranged girlfriend Tamela Hardison, 41. She was stabbed with a butcher knife while baby-sitting her grandchildren in her daughter’s Akron apartment.
Cosgrove, who presided over Fry’s trial and later handled his complaint about being denied the right to testify, referred to Fry as a “true psychopath” when she followed a Summit County jury’s recommendation in July 2006 and sentenced him to death.
Fry behaved bizarrely during his trial, frequently smiling and laughing and, at one point, eating candy.
Fry filed a request for post-conviction relief based on his claim that he was denied the right to testify in his trial. The 9th District ordered the trial court to explore this issue.
Cosgrove held hearings in July and December 2016 on Fry’s claim. Fry, his trial attorneys Larry Whitney and Kerry O’Brien, and a few of Fry’s family members testified. Cosgrove said she found “no credible evidence” that Fry wanted to testify but was denied the opportunity by his attorneys. She said Whitney and O’Brien discussed the pros and cons of Fry testifying and he changed his mind a few times but ultimately agreed when the trial was winding down that it wasn’t in his best interest.
Teodosio agreed with Cosgrove and said Fry should have said something to his attorneys or to Cosgrove during the trial if he wanted to testify. He pointed out that when Fry was asked by an assistant prosecutor why he didn’t say something to Cosgrove during the trial when he realized he wasn’t testifying, Fry responded, “I probably should have.”
Richard Cline, one of Fry’s new attorneys with the Ohio Public Defender’s Office, said Wednesday that his office may appeal the 9th district’s decision to the Ohio Supreme Court. Cline said Fry hasn’t yet exhausted his federal appeals of his death sentence.
Summit County Prosecutor Sherri Bevan Walsh released a statement Wednesday saying her office remains committed to upholding Fry's punishment.
“Clarence Fry is a cold-blooded killer. He brutally stabbed Tamela Hardison to death," she said. "We will continue to be Tamela’s voice and fight for her and her family to hold Fry accountable for his actions.”
Stephanie Warsmith can be reached at 330-996-3705, email@example.com and on Twitter: @swarsmithabj.