473 N.E.2d 264 (Ohio 1984), 84-478, State v. Jenkins

Docket Nº:84-478.
Citation:473 N.E.2d 264, 15 Ohio St.3d 164
Opinion Judge:FRANK D. CELEBREZZE, Chief Justice. CELEBREZZE, C.J.
Party Name:The STATE of Ohio, Appellee, v. Jenkins, Appellant.
Attorney:John T. Corrigan, Pros. Atty., George J. Sadd and Thomas Marotta, Asst. Pros. Attys., for appellee. Mr. John T. Corrigan, prosecuting attorney, Mr. George J. Sadd and Mr. Thomas Marotta, for appellee., Mr. Hyman Friedman, county public defender, and Ms. Marillyn Fagan Namelio, for appellant., Mr....
Judge Panel:SWEENEY, LOCHER, CLIFFORD F. BROWN and JAMES P. CELEBREZZE, JJ., concur. WILLIAM B. BROWN and HOLMES, JJ., concur in the syllabus and judgment only.
Case Date:December 17, 1984
Court:Supreme Court of Ohio
 
FREE EXCERPT

Page 264

473 N.E.2d 264 (Ohio 1984)

15 Ohio St.3d 164

The STATE of Ohio, Appellee,

v.

Jenkins, Appellant.

No. 84-478.

Supreme Court of Ohio.

December 17, 1984

Syllabus by the Court

1. Ohio's statutory framework for imposition of capital punishment, as adopted by the General Assembly effective October 19, 1981, and in the context of the arguments raised herein, does not violate the Eighth and Fourteenth Amendments to the

Page 265

[Copyrighted Material Omitted]

Page 266

[Copyrighted Material Omitted]

Page 267

[Copyrighted Material Omitted]

Page 268

[Copyrighted Material Omitted]

Page 269

[Copyrighted Material Omitted]

Page 270

United States Constitution or any provision of the Ohio Constitution.

2. To death-qualify a jury prior to the guilt phase of a bifurcated capital prosecution does not deny a capital defendant a trial by an impartial jury.

3. The instruction to the jury in the penalty phase of a capital prosecution to exclude consideration of bias, sympathy or prejudice is intended to insure that the sentencing decision is based upon a consideration of the reviewable guidelines fixed by statute as opposed to the individual juror's personal biases or sympathies.

4. R.C. 2929.024 requires the court to provide an indigent defendant with expert assistance whenever, in the sound discretion of the court, the services are reasonably necessary for the proper representation of a defendant charged with aggravated murder. The factors to consider are (1) the value of the expert assistance to the defendant's proper representation at either the guilt or sentencing phase of an aggravated murder trial; and (2) the availability of alternative devices that would fulfill the same functions as the expert assistance sought.

5. In the penalty phase of a capital prosecution, where two or more aggravating circumstances arise from the same act or indivisible course of conduct and are thus duplicative, the duplicative aggravating circumstances will be merged for purposes of sentencing. Should this merging of aggravating circumstances take place upon appellate review of a death sentence, resentencing is not automatically required where the reviewing court independently determines that the remaining aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt and that the jury's consideration of duplicative aggravating circumstances in the penalty phase did not affect the verdict.

6. The jury in the penalty phase of a capital prosecution may be instructed that its recommendation to the court that the death penalty be imposed is not binding and that the final decision as to whether the death penalty shall be imposed rests with the court.

7. R.C. 2929.05 requires the review of the proportionality of death sentences regardless of whether counsel has provided evidence of disproportionality. [15 Ohio St.3d 165]

8. The standard of proof in a capital prosecution is proof beyond a reasonable doubt as defined in R.C. 2901.05 and not proof beyond all doubt.

9. A capital defendant is not entitled to a special verdict on the question of intent to kill at the guilt phase of a capital prosecution.

10. In returning a sentence of life imprisonment under R.C. 2929.03(D)(2), the jury's verdict must be unanimous.

11. Any decision to vary the order of proceedings in R.C. 2945.10 is within the sound discretion of the trial court, and any claim that the trial court erred in following the statutorily mandated order of proceedings must sustain a heavy burden to demonstrate the unfairness and prejudice of following that order. (State v. Bayless, 48 Ohio St.2d 73, 357 N.E.2d 1035 [2 O.O.3d 249], paragraph three of the syllabus, approved and followed.)

12. Ohio's statutory framework for imposition of capital punishment neither mandates nor precludes sequestration of the jury following its guilty verdict but prior to the penalty phase.

13. To prevail on a claim of prejudice due to an ex parte communication between judge and jury, the complaining party must first produce some evidence that a private contact, without full knowledge of the parties, occurred between the judge and jurors which involved substantive matters.

On the morning of October 21, 1981, Leonard Jenkins (hereafter referred to as appellant) and Lester Jordan entered a branch of National City Bank. Appellant, brandishing a handgun, directed the individuals in the bank to the rear of the building.

Appellant proceeded to disarm the bank's security guard by holding his gun to the

Page 271

guard's head. Now in possession of two guns, appellant advanced with Jordan to each teller. Appellant held each teller at gunpoint while Jordan removed the money from the drawers. While this action was taking place, bank personnel were able to activate silent alarms connected directly to the police department. Within minutes police were dispatched to the scene.

Officers John Myhand and Anthony Johnson were the first to arrive and parked their patrol car near the front of the bank. Myhand approached the bank on foot, with Johnson following several steps behind. Myhand reached the front door of the bank, peered inside, and viewed appellant near the door. Myhand observed that appellant was armed and told Johnson, "This is a good one, take cover." Immediately Myhand turned and began to run from the bank.

After Myhand had run a short way, he heard a single shot and then several more shots. In the exchange of gunfire, both appellant and [15 Ohio St.3d 166] Johnson were wounded by bullets, Johnson mortally. At that instant Myhand felt a sharp pain in the back of his right knee. Apparently, believing that he had been shot, Myhand continued to hobble away from the bank and eventually fell to the ground.

Inside the bank, when appellant saw a police officer approach the front door and look inside he stated that they would have to shoot their way out and proceeded to fire a shot in the direction of the front door. After firing this single shot, appellant exited the bank where he and Johnson exchanged fire.

Having stumbled to the ground, Myhand looked back at the entrance of the bank where he saw both Johnson and appellant lying on the ground outside the bank's entrance. At that moment, Myhand observed a car backing toward him.

At this point Officers Jerome Howard and Gregory L. Henderson arrived on the scene in response to the original dispatch to the bank. Shortly before reaching the bank, Howard and Henderson had heard what they believed to be gunfire. Howard and Henderson observed Johnson and appellant lying in the vicinity of each other outside the bank as well as the car backing toward Myhand who was then struggling to get to his feet. Thinking that the approaching vehicle was attempting to run him over, Myhand drew his gun and fired a single shot at the car. Howard and Henderson both drew their weapons, each firing several shots in the direction of the car. Two of the car's tires were flattened and the passenger window was shattered. Nevertheless, the driver of the car managed to leave the scene of the shooting. 1

Jordan then exited the bank, was disarmed, apprehended, and made to lie down near appellant. Appellant, Johnson, and Myhand were immediately transported by ambulance to the hospital. Johnson subsequently died of a gunshot wound to the head. Appellant received a gunshot wound which severed his spinal cord rendering him permanently paralyzed below the waist. It was revealed that Myhand had not been shot but that, in seeking cover, he suffered a compound fracture of the fibula.

Having received emergency medical treatment, appellant was interviewed by police officers in the hospital and gave a statement to the effect that he shot at the police because he did not want to get caught.

Appellant was indicted for aggravated murder with specifications, 2 [15 Ohio St.3d 167] eight counts of

Page 272

aggravated robbery, two counts of attempted murder, eight counts of kidnapping, having a weapon while under a disability, and possession of criminal tools. Prior to trial, the state dismissed one kidnapping and one attempted murder count. The court at the request of both parties severed the charge of having a weapon while under a disability and ordered a separate trial on that count.

The cause proceeded to a jury trial. Upon the close of the state's case, the state dismissed two additional counts of kidnapping. The jury returned guilty verdicts on all counts, including the aggravated murder count and specifications relating to the death of Johnson. At the conclusion of the sentencing phase, the same jury recommended that appellant be sentenced to death. The trial court accepted the jury's recommendation and ordered that appellant be executed.

The court of appeals vacated appellant's conviction for possession of criminal tools on the basis of insufficient evidence. The court of appeals unanimously affirmed appellant's conviction and sentence in all other respects.

This cause is now before the court on appeal as of right.

John T. Corrigan, Pros. Atty., George J. Sadd and Thomas Marotta, Asst. Pros. Attys., for appellee.

Hyman Friedman, County Public Defender, and Marillyn Fagan Damelio, Cleveland, for appellant.

Bruce Campbell, Columbus, and Gail White, Akron, urging reversal for amicus curiae, American Civil Liberties Union.

Randall M. Dana, Public Defender, David C. Stebbins and Elizabeth Manton, Columbus, urging reversal for amicus curiae, Ohio Public Defender Comn.

FRANK D. CELEBREZZE, Chief Justice.

Today we review for the first time a conviction and death sentence subsequent to the reenactment of the death penalty in Ohio. See R.C. 2929.03 et seq. For the reasons to follow, we hold the death penalty...

To continue reading

FREE SIGN UP