The Akron Legal News

Woman who shot boyfriend after argument loses appeal

ANNIE YAMSON
Special to the Legal News
Published: April 11, 2016

A battered woman who shot her alleged abuser recently lost her appeal for postconviction relief.

A panel of three judges in the 9th District Court of Appeals held that Tina D’Agostino was properly denied relief without a hearing after she “failed to supply sufficient operative facts to establish substantive grounds for relief.”

D’Agostino was convicted in the Lorain County Court of Common Pleas of unauthorized use of a motor vehicle, felonious assault and domestic violence.

She was sentenced to eight years in prison.

According to case summary, on the morning of Feb. 27, 2010, D’Agostino and her live-in boyfriend, Steven Augustus, had a heated argument.

D’Agostino retreated into a bedroom while Augustus was taking a shower but the situation escalated again when Augustus tried to enter the bedroom and D’Agostino refused to let him in.

Augustus eventually managed to open the door using tools. Upon his entrance into the bedroom, D’Agostino shot him and then took Augustus’ truck and drove away from the scene.

D’Agostino lost her direct appeal but, while it was pending she also filed a petition for postconviction relief arguing that her trial counsel was ineffective because she was suffering from an undisclosed illness and a difficult pregnancy at the time of trial.

D’Agostino also maintained that her expert at trial, Dr. James Eisenberg, provided evidence of the attorney’s ineffectiveness in an affidavit.

Specifically, Eisenberg believed that counsel did not understand how to question an expert witness and failed to emphasize the self-defense implications of his testimony.

Eisenberg testified at trial that he evaluated D’Agostino and found that she “was a victim of continued domestic violence and was therefore a battered woman at the time of the alleged felonious assault.”

In his affidavit submitted in support of D’Agostino’s petition, Eisenberg stated that trial counsel’s questioning was “often confusing” and prevented him from “clearly providing a coherent and logical explanation for D’Agostino’s conduct and her diagnosis.”

This, he said, “undermined his testimony and provided damaging avenues of inquiry for the prosecution on cross examination.”

To further support her contention, D’Agostino presented five affidavits from relatives who stated that conversations with the attorney “caused them concern” about her preparation and performance at trial.

But the court of appeals found that the Lorain County court properly denied D’Agostino’s petition because it was “unclear” what more could have been done to assert a theory of self defense.

“Dr. Eisenberg’s report does not make a finding as to whether Ms. D’Agostino acted in self defense, instead indicating that ‘it is the trier of fact who will determine whether or not her actions constituted self defense,’” Judge Carla Moore wrote for the court of appeals. “Nonetheless, at trial, Dr. Eisenberg did conclude that Ms. D’Agostino was a battered woman and that she ‘suffered abuse from Augustus ... that this was over an extended period of time, and that on the date in question he believed she was in a situation where she believed that she was in danger of imminent harm and acted accordingly.’”

Considering the trial testimony, the court of appeals ruled that Eisenberg’s opinion “was placed squarely before the jury.”

It also pointed out that D’Agostino’s attorney attempted to demonstrate to the jury that, even if her client was not a battered woman, she still could have acted in self defense because “even if she was never abused, any reasonable person would be in fear at that time.”

In her closing argument, the defense attorney told the jury that she thought the case was “a straight self-defense case.”

Given the facts, the court of appeals refused to conclude that the trial court abused its discretion in denying D’Agostino’s petition for relief without a hearing.

“Ms. D’Agostino’s assignment of error is overruled,” Moore concluded. “The judgment of the Lorain County Court of Common Pleas is affirmed.”

Presiding Judge Jennifer Hensal and Judge Julie Schafer concurred.

The case is cited State v. D’Agostino, 2016-Ohio-1282.

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