400 N.E.2d 375 (Ohio 1980), 79-368, State v. Scott

Docket Nº:79-368, 79-378.
Citation:400 N.E.2d 375, 61 Ohio St.2d 155
Opinion Judge:WILLIAM B. BROWN, J.
Party Name:The STATE of Ohio, Appellee and Appellant, v. SCOTT, Appellant and Appellee.
Attorney:David C. Greer and Joseph P. Buchanan, Dayton, for Albert Lee Scott, Jr. Mr. David C. Greer and Mr. Joseph P. Buchanan, for Albert Lee Scott, Jr., Mr. Lee C. Falke, prosecuting attorney, and Mr. Gary W. Crim, for the state of Ohio.
Judge Panel:CELEBREZZE, C. J., and HERBERT, PAUL W. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.
Case Date:February 06, 1980
Court:Supreme Court of Ohio
 
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Page 375

400 N.E.2d 375 (Ohio 1980)

61 Ohio St.2d 155

The STATE of Ohio, Appellee and Appellant,

v.

SCOTT, Appellant and Appellee.

Nos. 79-368, 79-378.

Supreme Court of Ohio.

February 6, 1980

Page 376

Syllabus by the Court

1. An express written or oral statement of waiver of the right to remain silent or the right to counsel is usually strong proof of the validity of that waiver, but is not inevitably either necessary or sufficient to establish waiver. The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. (North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286, 292, followed.)

2. Where a wife has sufficient rights of common access, use and control of a vehicle registered in her husband's name, the wife herself has the authority to consent to a search thereof valid as against her husband.

Page 377

  1. In impeaching the credibility of a witness, inquiry into general reputation or character should be restricted to reputation for truth and veracity. (Craig v. State, 5 Ohio St. 605, approved and followed.)

4. The existence of an accused's purpose to kill must be found by the jury under proper instructions from the trial court and can never be determined by the court as a matter of law.

5. Where a jury could reasonably find against the state on the issue of an aider and abettor's purpose to kill, and find for the state on the remaining elements of felony murder, which themselves would sustain a conviction for involuntary manslaughter, a charge to the jury on involuntary manslaughter is both warranted and required. (State v. Nolton, 19 Ohio St.2d 133, 135, 249 N.E.2d 797, approved and followed.) [61 Ohio St.2d 156]

In the spring of 1975, Albert Lee Scott, Jr., hereinafter referred to as "appellant," together with Herbert Lee Moore and Willis LeRoy, initiated a plot to kidnap and hold for ransom Lester C. Emoff, a prosperous Dayton businessman and past employer of appellant. Emoff had fired appellant in November 1973, after accusing appellant of stealing from his furniture business. By mid-July 1975, the kidnapping plot consisted of bumping Emoff's automobile from the rear with another vehicle and kidnapping Emoff upon his leaving his automobile to inspect the damage. Emoff was then to be taken to a shack where he would be hidden until the ransom was paid. Though no specific date for the kidnapping was set, an undated ransom note addressed to Emoff's son, Robert Emoff, was prepared by the three participants on a notepad later found in appellant's home.

Appellant knew that Moore and LeRoy possessed guns. In fact appellant had given LeRoy a long barrel .38 caliber revolver. Prior to the kidnapping, Moore expressed his intent to kill Emoff, though appellant maintains their agreement was to release Emoff unharmed once the ransom money was secure. The undated ransom note that appellant assisted in drafting also contemplated the possibility of Emoff's death. It read as follows:

"Robert Emoff By 12:00 noon tomorrow, you should have in your possession the sum of Four Hundred-Thousand Dollars ($400,000.00) in bills of tens and twenties, money will be checked for unfamiliar markings, Police will not be contacted. Money is for the ransom of Lester Emoff. If these demands are not carried out to the letter, Lester Emoff and car with tag 866-pe will be destroyed with dynamite along with all three stories and your warehouse.

"At 12:00 noon tomorrow you are to leave your house with the money in the green car tag # 7947-nv and proceed to the Sohio station on Riverview and Philadelphia Dr. Inside the station you will receive further instructions at exactly 12:05 by phone. You will be timed. 30 MPH."

Appellant testified that in late July 1975, Moore and [61 Ohio St.2d 157] LeRoy informed him of their recent failure to accomplish the kidnapping, and of their skepticism that it could ever be accomplished. Appellant further testified that at this point he considered the plot abandoned. Evidence attempting to refute appellant's abandonment, however, was also presented. First, appellant admitted having at least three or four meetings with Moore and LeRoy in August and September. Second, appellant's driver's license served as identification for a September 12th purchase of .38 caliber special cartridges ammunition. 1 Third, there was testimony that on the day before Emoff's kidnapping, September 22, Moore and LeRoy visited appellant's home.

On the evening of September 23, 1975, Moore and LeRoy kidnapped Emoff, and brought Emoff in his automobile to appellant's home. Appellant testified that he asked LeRoy why LeRoy and Moore had brought Emoff to his home, and further testified that he then disaffirmed any involvement in the kidnapping. Shortly thereafter, Moore and LeRoy, together with

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Emoff, left appellant's home only to return, without Emoff, early the next morning, September 24, to discuss with appellant plans for securing the ransom. Consistent with his assertion that he had earlier abandoned the kidnapping, appellant testified that only at this later date was he persuaded to reassociate with the plot.

The details of the September 24, 1975, pick-up of the ransom are these. Appellant took a position near the spot where the ransom was to be dropped off by Emoff's son, Robert, while LeRoy directed Robert to that drop-off spot by telephoning him at the service station referred to in the ransom note. After Robert dropped off the ransom of $400,000 at approximately noontime, appellant picked up the money and delivered it to a location from which Moore and LeRoy apparently were then to take it to a "fence" in Columbus to be "cleaned." Before delivering the money, appellant took an uncertain number of twenty-dollar bills later recovered from various Detroit stores where they had been spent by appellant and his wife that afternoon. 2 [61 Ohio St.2d 158]

The next afternoon, September 25, armed with a search warrant, law enforcement officials began a search of appellant's then vacant home. Appellant and his wife returned home during this search at which time a search of appellant recovered one of the ransomed twenty-dollar bills. Appellant and his wife then agreed to accompany law enforcement officials to the Federal Bureau of Investigation offices in Dayton for further questioning. After separate interrogations of appellant and his wife, appellant was arrested.

After appellant's appearance before a judge, a plea bargain was reached between law enforcement officials and appellant and his attorneys. In return for information helpful in locating Emoff, the officials promised to limit both the prosecutorial use of the proffered information and the offenses for which appellant might be charged. Appellant testified that by this plea bargain, the officials unconditionally agreed, inter alia, not to charge him with aggravated murder. The officials and appellant's attorneys, who were not trial counsel, disagreed, however, testifying that the plea bargain was conditioned upon appellant's passing a polygraph test. Shortly thereafter, appellant admitted involvement in the kidnapping and led the police to Emoff's body. 3

The Montgomery County Grand Jury indicted appellant on one count of aggravated murder while committing the offense of kidnapping under R.C. 2903.01(B), with two specifications under R.C. 2929.04(A)(3) and R.C. 2929.04(A)(7). In addition, appellant was charged with one count of kidnapping under R.C. 2905.01(A)(1), and with one count of extortion under either R.C. 2905.11(A)(1) or (2). Appellant pleaded not guilty on all counts. Due to extensive pre-trial publicity, venue was changed to Hamilton County pursuant to appellant's motion. A jury convicted appellant on all counts, including one specification. After finding the mitigating factors listed in R.C. 2929.04(B) inapplicable, the trial court imposed the death sentence. [61 Ohio St.2d 159]

On appeal, the Court of Appeals affirmed the kidnapping and extortion convictions but reversed and remanded the conviction for aggravated murder. 4 In connection with this reversal and remand, the Court of Appeals held that it was prejudicial error for the trial court, over appellant's objection, to answer affirmatively a jury question

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to the effect that a conviction for kidnapping, without more, was sufficient to support a conviction for aiding and abetting a murder.

The cause is now before this court pursuant to the allowance of Scott's motion for leave to appeal in case No. 79-368, and the state's motion for leave to appeal in case No. 79-378.

David C. Greer and Joseph P. Buchanan, Dayton, for Albert Lee Scott, Jr.

Lee C. Falke, Pros. Atty. and Gary W. Crim, Asst. Pros. Atty., for the state of Ohio.

WILLIAM B. BROWN, Justice.

Appellant Scott, herein challenges the Court of Appeals' affirmance of the kidnapping and extortion convictions, and its reversal and remand of the aggravated murder conviction. The state has separately appealed this reversal and remand. We consolidate these appeals and discuss appellant's objections first.

I.

Appellant contends, in his first proposition of law, that he is entitled to a discharge due to the state's failure to comply with the speedy trial provisions, R.C. 2945.71 et seq. As herein applied, the speedy trial provisions effectively require that a felon incarcerated on a pending charge must be discharged upon his motion if not brought to trial within 90 days of arrest, unless the period of delay in excess of 90 days can be explained in terms of the excusing conditions included in R.C. 2945.72. 5 Appellant, in effect, contends (1) that the [61 Ohio St.2d 160] only explanation for a 49-day...

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