528 N.E.2d 1237 (Ohio 1988), 87-447, State v. Henderson

Docket Nº:87-447.
Citation:528 N.E.2d 1237, 39 Ohio St.3d 24
Opinion Judge:HERBERT R. BROWN, Justice. H. BROWN, J.
Party Name:The STATE of Ohio, Appellee, v. HENDERSON, Appellant.
Attorney:Arthur M. Ney, Jr., Pros. Atty., Christian J. Schaefer, Cincinnati, John P. Valentine and Janna H. Flessa, for appellee. Arthur M. Ney, Jr., prosecuting attorney, Christian J. Schaefer, John P. Valentine and Janna H. Flessa, for appellee., Cissell & Smith, Timothy A. Smith and D. Shannon Smith, f...
Judge Panel:MOYER, C.J., and SWEENEY, LOCHER, HOLMES, DOUGLAS and WRIGHT, JJ., concur.
Case Date:September 28, 1988
Court:Supreme Court of Ohio

Page 1237

528 N.E.2d 1237 (Ohio 1988)

39 Ohio St.3d 24

The STATE of Ohio, Appellee,


HENDERSON, Appellant.

No. 87-447.

Supreme Court of Ohio.

September 28, 1988

Page 1238

Submitted June 13, 1988.

Syllabus by the Court

1. Ohio's capital sentencing scheme does not violate the Ohio or United States Constitutions even if the aggravating circumstances for felony murder (set forth in R.C. 2929.04[A] ) are identical to the elements of aggravated murder (set forth in R.C. 2903.01[B] ). (State v. Jenkins [1984], 15 Ohio St.3d 164, 177-178, 15 OBR 311, 322-323, 473 N.E.2d 264, 279-280, followed.)

2. Ohio's capital sentencing scheme constitutionally narrows the class of persons eligible for the death penalty. (Lowenfield v. Phelps [1988], 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568, followed.)

Our review of this case is statutorily mandated because a sentence of death was imposed upon appellant, Jerome Henderson, for his conviction of the aggravated murder of Mary Acoff.

Around 10:45 p.m., March 2, 1985, Acoff left her basement-level apartment at 1944 Highland Avenue in Cincinnati and went to

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the apartment of her boyfriend, James Martin, who lived in the same building. Martin and Acoff engaged in sexual intercourse. Acoff left around midnight and returned to her apartment.

Tony Nixon, who lived in the apartment above Acoff, testified that around 4:50 a.m. on March 3, 1985, he heard sounds "like a commotion" coming from below. After Nixon stepped into the hallway of the building to await his ride to work he heard a downstairs door open. However, he did not see anyone downstairs.

Cheryl Turner testified that as she drove toward the building about 6:00 a.m. to pick up Nixon, she saw appellant standing on the street a little way up from the building. She stated that appellant was wearing a dark, knee-length coat.

Delrick Johnson testified that as he approached the Highland Avenue area around 5:30 a.m., he saw appellant, whom he knew from school. Johnson honked his horn at appellant, who responded by pulling his coat up around his ears. Johnson stated that appellant was wearing a long leather coat with a shorter coat underneath.

About 4:15 p.m., March 3, 1985, ten-year-old Joann Acoff, Mary Acoff's daughter, and Sandra Simmons, a neighbor, found Acoff's body on the living room floor of the apartment. The front door was unlatched and a kitchen window was closed but unlocked.

The police found latent fingerprints, mud on the kitchen and living room floors, and bloodstains on the outside kitchen windowsill. A blood-stained rock and fallen leaf were found on the ground outside the kitchen window. The ground beneath the kitchen window was muddy.

Acoff died as a result of hemorrhage due to multiple stab, incised and [39 Ohio St.3d 25] blunt injuries to the head, chest, neck and upper extremities. In addition to at least four fatal stab wounds, Acoff had been cut with the point of a sharp knife numerous times and her throat had been slashed at least thirteen times. Acoff's left hand had been cut and was wrapped in a towel.

Acoff's body was found nude, lying face up with legs spread apart. Semen was found in her vagina. The deputy coroner testified that the general pattern of bloodstains over the upper torso indicated that Acoff was killed while she was lying in a horizontal position.

The front door of the apartment building was kept locked. To gain entry without a key, one had to ring the doorbell of an apartment and have the occupant open the front door. On the day of the murder, Acoff's doorbell was not working.

Apparently nothing was stolen from the apartment: Acoff's purse was undisturbed, a gold chain was found lying in a pool of blood on the floor and the stereo and television set were in place.

Upon learning of appellant's presence in the neighborhood, police called him and he went to the police station to be interviewed. Appellant denied being in the vicinity of Acoff's apartment at the time of the murder. He was permitted to leave the police station.

Shortly thereafter, police were told that a latent fingerprint lifted from the kitchen wall of Acoff's apartment had been identified as appellant's. Police arrested appellant and informed him of the fingerprint, but appellant insisted that he had never been inside Acoff's apartment and that he did not know her.

Police searched appellant's residence pursuant to a warrant and seized a damp pair of gym shoes, a long black leather coat, a short black leather jacket, and an eight-inch paring knife discovered inside the pocket of the jacket. The soles of the shoes contained human blood but in an insufficient amount to determine its type. A bloody shoeprint from the floor of Acoff's apartment was consistent with the characteristics of the soles of the seized gym shoes. Bloodstains found on the coat were consistent with Acoff's blood type (type AB) and inconsistent with appellant's (type O). A piece of unidentifiable human tissue was discovered on the long coat. Semen stains, consistent with a type O secretor, were also found on the coat.

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The rock found outside the kitchen window was stained with type AB blood and the fallen leaf with human blood, type unknown.

Appellant was charged with two counts of aggravated murder with specifications that: (1) appellant, as the principal offender, purposely caused Acoff's death while committing or attempting to commit aggravated burglary; and (2) appellant, as the principal offender, purposely caused Acoff's death while committing or attempting to commit rape. The third and fourth counts charged appellant with aggravated burglary and rape.

Appellant pled not guilty. The jury found appellant guilty of both counts of aggravated murder and the accompanying specifications. The jury also found appellant guilty of aggravated burglary and not guilty of rape but guilty of attempted rape. The jury recommended a penalty of death; the trial court followed the recommendation and imposed a death sentence. The court further sentenced appellant on counts three and four to consecutive terms of imprisonment.

The court of appeals affirmed the convictions and sentence of death.

The cause is before us upon an appeal as of right. [39 Ohio St.3d 26]

Arthur M. Ney, Jr., Pros. Atty., Christian J. Schaefer, Cincinnati, John P. Valentine and Janna H. Flessa, for appellee.

Cissell & Smith, Timothy A. Smith and D. Shannon Smith, Cincinnati, for appellant.


Jerome Henderson appeals his convictions and sentence of death. We uphold the convictions and affirm the death sentence, for the following reasons.


We begin by a review of appellant's twelve propositions of law and supporting arguments.


Appellant's first proposition is that the Ohio death penalty scheme is unconstitutional, for eleven separate reasons. Of these, appellant concedes that we have decided ten of them in previous decisions; appellant has raised them to preserve them for future appeals. For the reasons set forth in State v. Maurer (1984), 15 Ohio St.3d 239, 15 OBR 379, 473 N.E.2d 768; State v. Jenkins (1984), 15 Ohio St.3d 164, 173-174, 15 OBR 311, 319-320, 473 N.E.2d 264, 277, and paragraph two of the syllabus; and State v. Buell (1986), 22 Ohio St.3d 124, 138, 141, 22 OBR 203, 215, 217-218, 489 N.E.2d 795, 808, 810, we overrule these ten challenges.

Appellant's other challenge to the constitutionality of the Ohio statute is a contention that the statute mandates a death penalty because no system of moral beliefs would permit the conclusion that a defendant's age, family background or any other mitigating factor is more significant than the fact that the defendant intentionally killed an innocent person. Appellant believes that his argument is different than the argument rejected in Jenkins, supra, that the General Assembly failed to limit the sentencing authority's discretion. Appellant argues that the Ohio scheme eliminates sentencing discretion. Appellant's argument is without merit for two reasons.

First, juries are not required to recommend the death sentence unless they find that the aggravating circumstances outweigh the mitigating factors. State v. Williams (1986), 23 Ohio St.3d 16, 24, 23 OBR 13, 20, 490 N.E.2d 906, 914. We recognized in State v. Coleman (1988), 37 Ohio St.3d 286, 294, 525 N.E.2d 792, 800, that " * * * a reasonable jury could (and Ohio juries have been able to) recommend life sentences under the right set of facts. This is supported by the fact that Ohio juries have recommended the death penalty on a less-than-regular basis."

Second, appellant's premise is flawed because it fails to perceive that the balance is not between mitigating factors and the intentional killing of an innocent person. Intentional killing describes the crime of aggravated

Page 1241

murder. See R.C. 2903.01. What the jury is balancing are any mitigating factors present in the case against the separate and distinct factors, termed "aggravating circumstances," enumerated in R.C. 2929.04(A)(1) through (8). At least one of these circumstances must exist in addition to the aggravated murder or consideration of the death penalty is precluded. See R.C. 2929.04(A). We find no merit in appellant's first proposition.


Appellant's second proposition is that he was prejudiced by the trial court's refusal to excuse prospective alternate juror Andrea Pferrman for cause.

We agree with the court of appeals that the trial court did not err by refusing to excuse Pferrman for cause. Although [39 Ohio St.3d 27] Pferrman initially expressed reluctance to serve and a belief that appellant must have done something or he would not be in court, she did state, upon...

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