The Supreme Court of Ohio today affirmed the death sentences of a Cuyahoga County man who murdered the two teenage children of his girlfriend.

In a 4-3 decision, the Supreme Court ruled that the death sentences are appropriate for Matthew Nicholson, who in 2018 shot to death 19-year-old Giselle Lopez and her 17-year-old brother, identified in court records as “M.L.”

Nicholson said he just “snapped” after getting into a violent argument with the teens’ mother, America Polanco. Nicholson lived with Polanco and her children in her Garfield Heights home since 2014.

Writing for the majority, Justice Patrick F. Fischer stated the Court gave significant weight to Nicholson’s mitigating evidence, particularly that he was raised in a violent household and was controlled by abusive parents.

“However, the strength of the aggravating circumstances cannot be overstated. Nicholson murdered two unarmed teenagers in front of their mother and mounted a defense that the physical evidence flatly contradicts,” he wrote.

Justices R. Patrick DeWine and Joseph T. Deters joined Justice Fischer’s opinion.

In a concurring opinion, Chief Justice Sharon L. Kennedy wrote that she joined most of the majority opinion’s analysis and the judgment affirming Nicholson’s convictions and death sentences. However, she disagreed with two aspects of the majority opinion.

First, the chief justice found that the trial court allowed some “improper victim-impact testimony,” in which witnesses testified that M.L. and Giselle were “good,” “respectful,” “polite,” “intelligent and family-centered children.” The majority found the testimony was permissible. While Chief Justice Kennedy disagreed, she concluded that the testimony did not impact the outcome of the trial.

Second, the chief justice disagreed with how the majority characterized the defense of “blackout.”  Nicholson claimed he “blacked out” during the incident. He further claimed that because his trial counsel failed to request a “blackout” jury instruction, he received ineffective assistance of counsel.  The majority labeled “blackout” as an affirmative defense, while the chief justice asserted that it is a failure-of-proof defense. Despite this disagreement, however, she concurred with the majority  that Nicholson did not produce the evidence to justify the defense.

In a dissenting opinion, Justice Jennifer Brunner wrote that the aggravating circumstances demonstrate that Nicholson “senselessly and selfishly” killed the teens. However, she wrote the Court must compare the aggravating circumstances with other heinous killings for which the Court has affirmed the death penalty.

“After doing so, it is clear that the aggravating circumstances of Nicholson’s offenses do not rise to the level of those in other cases in which we have affirmed the death sentences,” she stated.

Justice Brunner concluded that Nicholson should receive life in prison. Justice Melody Stewart joined Justice Brunner’s opinion.

Justice Michael P. Donnelly also joined Justice Brunner’s opinion. He wrote separately to note that Nicholson was tried in 2019. In 2019, Cuyahoga County pursued four death penalty cases, the most of any county in the nation that year.

He wrote that Nicholson’s penalty seemed to be determined by the location of the crimes rather than their severity or other relevant circumstances.

Simmering Feud Erupted Into Shooting
Nicholson met Polanco at work. Polanco was ending a relationship with another coworker when she met Nicholson, and Nicholson said Polanco approached him because he had a “background in law enforcement.” Nicholson moved into Polanco’s home with M.L. and Giselle. Nicholson said he initially had a good relationship with Polanco’s children; however, Polanco and Nicholson made a concerted effort to conceal his age from M.L. and Giselle. Nicholson was at least 15 years younger than Polanco.

Nicholson said the two teens discovered his age, and from that point, the level of respect they showed him diminished.

Nicholson worked security during his relationship with Polanco, and in September 2018, he was an armed security guard for Paragon Systems. He was issued a handgun and said that when he was not working, he often left his work gun and duty belt in the trunk of the car. He owned other guns, some of which he kept in Polanco’s house.

On Sept. 5, 2018, Nicholson came home from his shift around 7 p.m., and Polanco and M.L. were home. M.L. was in his upstairs bedroom. Polanco and Nicholson went to their downstairs bedroom. Nicholson noticed Polanco’s cellphone beeped, and she attempted to conceal a text message. Polanco told him it was from her former boyfriend. Upset, Nicholson called the number from Polanco’s phone and asked the man if there was anything “going on” between him and Polanco.

The man denied the two were in a relationship, but Nicholson became upset and grabbed Polanco by her neck, threw her onto the bed, and began strangling her.

M.L. heard the struggle, and Polanco said Nicholson yelled at her, “Your son is coming down here. I’ll kill him, and I’ll kill your daughter too.” When M.L. reached the master bedroom door, Nicholson grabbed him, pushed him into the kitchen, and pinned him to the floor. When Polanco tried to intercede, Nicholson threw her against the wall.

M.L. called 911 and called Giselle. Giselle was driving home from work and parked in the driveway. M.L. told her not to come into the house. Polanco said Nicholson told M.L., “I told you don’t you ever call the police.”

Nicholson obtained his gun from the bedroom and returned to the kitchen. M.L. went outside through the kitchen door. Nicholson pushed past Polanco and fired 13 shots at M.L. and Giselle, who were less than 10 feet from the house.

Police arrived to find Polanco kneeling near her children and learned Nicholson was in the basement on the phone with his mother. A Garfield Heights Police lieutenant reached Nicholson and conducted a three-way call. Nicholson expressed potentially committing suicide and admitted to shooting the kids. He said he had blacked out during the incident and that he “snapped.” He told the officer that M.L. was the aggressor, who tried to break in the bedroom door, and that the argument between him and Polanco, along with M.L.’s and Giselle’s disrespect toward him in general, led to the shooting.

Boyfriend Charged With Murder
Nicholson was indicted for two counts of aggravated murder and acting with prior calculation and design. Each count carried a death penalty specification for acting in the course of conduct of purposefully killing two people. He was also charged with the attempted murder of Polanco, for the murders of M.L. and Giselle, for the attempted felonious assault of Polanco,  and with felonious assault of the children. All the counts carried a gun specification.

Nicholson pleaded not guilty and was tried by a jury. The jury found him guilty on all charges and specifications except for the attempted murder of Polanco. Following the mitigation phase of the trial, the jury recommended the death sentence. The trial judge sentenced Nicholson to death on both aggravated murder counts. The judge also sentenced Nicholson to three years in prison for a gun specification and three years for the attempted felonious assault of Polanco.

All death sentences receive an automatic appeal to the Supreme Court.

Shooter Contested Convictions
The Supreme Court analyzed all 20 of Nicholson’s legal challenges to his convictions and sentences. Among his arguments were that the weight of the evidence indicated he acted in self-defense and not with prior calculation and design to murder Polanco’s children. He also maintained his attorneys were ineffective by not pursuing a defense that he blacked out during the shooting and was not legally responsible for the teens’ deaths.

Justice Fischer explained that to convict Nicholson of the death penalty for acting with prior calculation and design, the evidence must show that he acted with “advance reasoning and purpose to kill.” He noted there is no bright line test for determining whether a defendant acted on the spur of the moment or after studied consideration, and each case turns on its own facts.

The opinion stated the Court has identified three factors to help determine whether a defendant acted with prior calculation and design, including whether the accused and the victims had a strained relationship; if the accused gave thought or preparation to choosing the murder weapon or murder site; and if the act was drawn out or an “almost instantaneous eruption of events.”

The Court found that Nicholson and the children had a strained relationship in which Nicholson threatened Polanco and the children multiple times. The evidence also showed that Nicholson gave thought to the details of the murder, the opinion stated, when Nicholson left the kitchen and returned with a gun.

Nicholson argued that the murders were an instantaneous eruption of events and that it was less than 40 seconds from when he left the kitchen to get his gun and the time he shot the teens. The Court stated that Nicholson’s actions were more than a momentary impulse and that while brief, he made a decision to leave the kitchen to retrieve a gun and fired 13 shots at the backs of the retreating victims.

Self-Defense, Blackout Claims Rejected
Nicholson argued the trial court wrongly rejected his self-defense claim. The Supreme Court found that Nicholson, not M.L., started the confrontation by attacking Polanco. Nicholson testified that he retrieved his personal gun only after he saw M.L. and Giselle remove his security guard service gun from the trunk of his car. He said he started to shoot when Giselle got the gun out of the holster.

Nicholson claimed that after the shooting, Polanco put the gun back in the trunk of the car. Police who searched Nicholson’s car on the night of the shooting did not find Nicholson’s gun in the car. Polanco and another son who did not live at home testified that after the murders, they collected all of Nicholson’s belongings from the house and threw them in his trunk. Polanco’s son testified that he saw the service gun in the master bedroom and placed it with all the other belongings in the trunk.

On Sept. 13, 2018, police returned to the crime scene and searched Nicholson’s vehicle. They discovered the gun in the trunk.

The Court found that the jury did not lose its way in disbelieving Nicholson’s testimony. The opinion stated the physical evidence shows that M.L. and Giselle were unarmed, and each was shot in the back about four feet from the side door. M.L. died immediately and fell on top of Giselle, pinning her body beneath his. She died soon after.

“The evidence described above collectively represents substantial evidence on which the jury could properly conclude beyond a reasonable doubt that Nicholson purposely and with prior calculation and design caused the deaths of M.L. and Giselle and did not act in self-defense,” the opinion stated.

Nicholson also claimed he was innocent because he had blacked out during the shooting, and his attorneys failed to pursue a blackout defense. The Court stated that to have a jury consider a blackout defense, Nicholson had to present evidence that he shot the two “while he was unconscious, as in a blackout due to disease or injury.” The blackout defense requires proof that Nicholson was unconscious and acted involuntarily. The record contains insufficient evidence to suggest Nicholson was unconscious and acted involuntarily, the Court concluded.

After rejecting Nicholson’s legal arguments, the Court independently reviewed the aggravating and mitigating circumstances and determined that the death penalty was appropriate. The Court also found Nicholson’s sentence was not disproportionate when compared to death sentences imposed on others convicted of murder with course of conduct specifications.

Death Sentence Unwarranted, Dissent Maintained
In her dissent, Justice Brunner emphasized the high court’s duty to make an independent review of the evidence in the record and determine whether the aggravating circumstances of the offenses outweigh beyond a reasonable doubt the mitigating factors relating to the defendant. She stated that, before the Supreme Court may uphold a death sentence, “we must find that death is the appropriate sentence based on the penalties imposed in similar cases,” citing R.C. 2929.05(A). 

She noted that expert witnesses evaluated Nicholson and testified that he suffered from numerous mental health issues. Those issues were formed by growing up in an abusive household. Both his father and mother admitted that they grew up in violent homes and that they were heavy drinkers. The parents admitted that they fought often, usually while intoxicated, and that Nicholson and his older brother witnessed and experienced abuse.

Justice Brunner wrote that the Court majority compared Nicholson’s case to other death penalty recipients who acted in a similar mode. She disagreed with the majority’s conclusion that the aggravating factors far outweighed the mitigating factors. The dissent emphasized through illustration of specific, prior death sentences upheld by the court that Nicholson presented far more mitigating factors, including his upbringing, than past comparable defendants. The dissent further noted that, unlike the other cases, Nicholson’s actions were less planned and not committed during the course of other felonies.

Location, Not Crime, Drew Death Penalty Charge, Dissent Asserted
In his dissent, Justice Donnelly noted that in 2019, four of the seven death sentences imposed in Ohio courts were in Cuyahoga County. He noted that the four sentences in 2019 were the same number as the prior eight years combined in Cuyahoga County.

“Nicholson, in a senseless rage, murdered two young people, and for that, he deserves severe punishment. However, I am convinced that in any Ohio county in any year other than Cuyahoga County in 2019, the punishment for offenses like Nicholson’s here would have been life in prison, not death,” Justice Donnelly wrote.

2019-1787. State v. Nicholson, Slip Opinion No. 2024-Ohio-604.

View oral argument video of this case.

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