State v. Allen

• Citation: 73 Ohio St.3d 626,653 N.E.2d 675
• Decision Date: 06 September 1995
• Docket Number: No. 93-2377,93-2377
• Parties: The STATE of Ohio, Appellee, v. ALLEN, Appellant.
• Court: United States State Supreme Court of Ohio

Page 626

73 Ohio St.3d 626

653 N.E.2d 675

The STATE of Ohio, Appellee, v. ALLEN, Appellant.

No. 93-2377.

Supreme Court of Ohio.

Submitted April 25, 1995.

Decided Sept. 6, 1995.

In June 1991, a Cuyahoga County jury returned guilty verdicts in the trial of appellant, David W. Allen ("Allen"), for the aggravated robbery and aggravated murder of eighty-four-year-old Chloie English ("English") of Bedford, Ohio. English knew Allen through her participation in a prison ministry program. English ministered to five convicted felons, including Allen. She visited and corresponded with Allen while he was in prison and they stayed in touch after his release in 1989. On January 9, 1991, English received a phone call from someone named "David." According to English's daughter, the conversation left English shaking.

English was last seen alive at 5:45 p.m. on January 24, 1991, by her friend Judy Sperry ("Sperry") who had visited English in her home. At 6:45 p.m. the next day, English's friend Cathy Curry found English lying dead in her living room. The doors to English's house were unlocked, which was unusual because English always locked her doors and never opened them to strangers.

After English's body was found, Bedford police officers secured, photographed, and searched the house. Detective Gerry Artl found English's eyeglasses on the floor and noted a large thumbprint on the inside of the left lens. That thumbprint turned out to belong to David Allen. Police recovered ten cigarette butts from English's kitchen garbage. Saliva tests showed that five of the butts had been smoked by a Type O secretor. ¹ (The rest lacked sufficient saliva for testing.) Two of the butts still had the "Doral" brand name on them. Allen is a Type O secretor, and there was evidence that he smoked Dorals. English disapproved of smoking and was a Type O non-secretor.

Although English's last known visitor was a woman, someone had left the toilet seat up in English's bathroom. Moreover, the coffee pot in the kitchen, empty when Sperry left, was half full when English's body was discovered. Police found several items burnt in the fireplace, including the remains of English's purse and wallet, a broken ashtray, a broken coffee cup, a broken drinking glass, a wine bottle, and a knife with its handle burnt off.

Police found no money in the house, even though English always kept about $50 in her wallet for emergencies. English's credit cards and checkbook were also missing.

Detective Timothy Oleksiak ("Oleksiak") obtained the names of prisoners with whom English had corresponded. All but Allen were still in prison. Oleksiak and Artl had the print on the eyeglasses compared with Allen's; when the print was identified as Allen's, Oleksiak got an arrest warrant.

On January 29, Allen was arrested. He was wearing a denim jacket with a stain on one of the sleeves. That stain turned out to be Type O blood, the same type Allen and English shared. Allen was carrying a bus transfer issued between 6:04 and 7:00 a.m., January 25, on the No. 41 Warrensville bus route. The driver identified Allen as a passenger he had picked up on January 25 at 6:04 a.m., at a stop 1.3 miles from English's house.

Allen also had a refund receipt for a Greyhound bus ticket. There was no record of when the ticket was sold, but Allen got the refund on January 25, at 11:28 p.m. Moreover, when Detective Artl searched Allen's bedroom, he found two packed suitcases under Allen's bed.

The jury returned guilty verdicts on two counts of aggravated murder, R.C. 2903.01(A) and (B), each count having a death specification under R.C. 2929.04(A)(7) (felony-murder). The jury also found Allen guilty of aggravated robbery, R.C. 2911.01. After a penalty hearing, the jury recommended the death penalty. The court accepted the recommendation and imposed the death sentence. As to the aggravated robbery count, the court imposed a sentence of fifteen to twenty-five years. The court of appeals affirmed the convictions and sentences.

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

Stephanie Tubbs Jones, Cuyahoga County Pros. Atty., Thomas Sammon, Timothy Dobeck and Elaine Welsh, Asst. Pros. Attys., for appellee.

David H. Bodiker, Ohio Public Defender, Gloria Eyerly, Kathleen A. McGarry and Jane P. Perry, Asst. Public Defenders, for appellant.

COOK, Justice.

We have reviewed Allen's twenty-three propositions of law, independently weighed the aggravating circumstance against the mitigating factors and evaluated the proportionality and appropriateness of the death penalty. For the following reasons, we affirm the judgment of the court of appeals and uphold the convictions and death sentence.

Pursuant to R.C. 2929.05, this court is required to review capital cases in a specific way; however, that section does not require us to discuss each and every proposition of law raised by the parties. State v. Scudder (1994), 71 Ohio St.3d 263, 267, 643 N.E.2d 524, 528; State v. Poindexter (1988), 36 Ohio St.3d 1, 3, 520 N.E.2d 568, 570. Accordingly, in this opinion we address only those issues that warrant discussion.

I The Guilt Phase

A. Jury Issues

1. Alleged Bias

In his first proposition of law, Allen contends that juror Worthington should have been excused for cause because she could not be fair and impartial and was biased against him. Juror Worthington's brother had been murdered, and the alleged killer was acquitted. On voir dire, Worthington admitted to some bitterness, but said she could set her feelings aside and vote solely on the evidence. Although Worthington was unsure if she could hold back her emotions When the defense challenged Worthington, the court noted that she "unequivocally stated that she could be fair and impartial." The court found Worthington was "very straightforward" and "under[stood] the responsibility here * * *."

on hearing testimony similar to that at her brother's trial, she answered "no" when asked if her feelings would "impact" on the case. Additionally, Allen points out that Worthington had two friends who were police officers, and the prosecutor and detective who investigated her brother's murder sometimes "checked-up" on her mother.

The trial court's ruling on a challenge for cause will be affirmed if supported by substantial testimony. State v. Tyler (1990), 50 Ohio St.3d 24, 31, 553 N.E.2d 576, 587. Here, the trial court found Worthington unbiased, a finding supported by Worthington's testimony. Allen argues that the juror's belief in her own impartiality is insufficient support, but the trial judge saw and heard Worthington and could legitimately validate her statements. See Tyler at 30, 553 N.E.2d at 586; State v. Henderson (1988), 39 Ohio St.3d 24, 26-27, 528 N.E.2d 1237, 1241. Allen's first proposition of law lacks merit.

2. Voir Dire Issues

In his second proposition of law, Allen contends that veniremen Skufca and Washington, who stated that they could not impose the death penalty, were improperly stricken from the venire. See, generally, Witherspoon v. Illinois (1968), 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. Allen claims the trial court improperly restricted his questioning of them. However, defense counsel questioned Skufca after she said she didn't believe she could impose the death penalty. Although the court did excuse her after only two questions by the defense, the defense apparently had no more questions and alleged no deprivation of voir dire. During Washington's voir dire, the trial court sustained objections to three defense questions; however, all three repeated questions the judge had already asked. Allen also argues that the trial court should have allowed the defense to ask Washington whether he understood "that only the Judge can decide ultimately what the sentence is," because it "downplayed to the jurors, the significance of their verdict * * *." This court has previously found that such an instruction does not constitute prejudicial error, State v. Landrum (1990), 53 Ohio St.3d 107, 122, 559 N.E.2d 710, 727, although we have expressed a preference that this instruction be avoided. Id., citing State v. Williams (1986), 23 Ohio St.3d 16, 22, 23 OBR 13, 19, 490 N.E.2d 906, 912.

In part B of Allen's second proposition of law, he complains that the state peremptorily challenged a juror because she opposed the death penalty. Allen waived this issue by not raising it at trial. See State v. Campbell (1994), 69 Ohio St.3d 38, 40-41, 630 N.E.2d 339, 344. Furthermore, " 'prosecutors can exercise a

                peremptory challenge for any reason, without inquiry, and without a court's control,' apart from excluding jurors based on race * * * or sex."  (Citations omitted.)  State v. Lundgren (1995), 73 Ohio St.3d 474, 484, 653 N.E.2d 304, 317.   The second proposition of law is overruled in its entirety
                

3. Judge's Note to Jury

In his eighteenth proposition of law, Allen claims that he was denied a fair trial because the trial court communicated with the jury outside his presence. During penalty phase deliberations, the jury sent the judge a note asking for "a copy of DSM III-R ² and [d]ictionary[.]" The judge wrote back: "You have received all of the exhibits that have been received into evidence and you may not receive any others. No extraneous research may be done (i.e., looking up words in a dictionary etc.)"

A trial judge may not communicate with the jury in the defendant's absence. State v. Abrams (1974), 39 Ohio St.2d 53, 56, 68 O.O.2d 30, 32, 313 N.E.2d 823, 825; Bostic v. Connor (1988), 37 Ohio St.3d 144, 149, 524 N.E.2d 881, 886. However, if the communication is not "substantive," the error is harmless. State v. Jenkins (1984), 15 Ohio St.3d 164, 236-237, 15 OBR 311, 373-374, 473 N.E.2d 264, 324; accord Abrams, supra, and Bostic, supra. In Bostic, we held that the court's ex parte communication with the jury was harmless error because there was "no possibility that the jury's conclusion was influenced by the court's...