State v. Garner, 94-1964

• Decision Date: 22 November 1995
• Docket Number: No. 94-1964,94-1964
• Citation: 656 N.E.2d 623,74 Ohio St.3d 49
• Parties: The STATE of Ohio, Appellee, v. GARNER, Appellant.
• Court: Ohio Supreme Court

Page 49

74 Ohio St.3d 49

656 N.E.2d 623

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

No. 94-1964.

Supreme Court of Ohio.

Submitted July 12, 1995.

Decided Nov. 22, 1995.

In the pre-dawn hours of January 26, 1992, three fires were intentionally set in the apartment of Addie F. Mack at 1969 Knob Court in Cincinnati while Mack was being treated at a local hospital emergency room. As a result, five children who had been sleeping on the second floor of the apartment died of smoke inhalation. Mack's oldest child, Rod (age thirteen), survived by escaping through a window. He was found at the scene by police officers: crying, upset and shoeless on the bitterly cold January night.

Later that morning, police interviewed Thomas J. Tolliver, a cab driver for the Yellow Cab Company. Investigators had been led to Tolliver based upon information provided by two police squad car officers who had observed a young man walking to a Yellow Cab waiting outside the 1969 Knob Court address just prior to the time the fire was reported.

Tolliver provided police with an address on Burnet Avenue to which he had delivered his previous night's fare, who had identified himself as "William." Tolliver described picking "William" up at the same hospital emergency room where Mack had been treated, driving to 1969 Knob Court, and waiting while "William" entered the apartment and eventually brought several items to the cab. Tolliver told police he then drove his fare to a United Dairy Farmers ("UDF") convenience store and waited while "William" purchased several items. Police recovered a television set from Tolliver which "William" had removed from Knob Court, and which Tolliver accepted as collateral in lieu of payment of cab fare when "William" told him he could not pay cash.

Police obtained surveillance videotape from the UDF and showed Tolliver still photographs taken from it. Tolliver confirmed that the individual shown therein was his fare from the previous evening, although Tolliver made his identification on the basis of clothing rather than facial features. During this questioning, Tolliver was shown three photo arrays, two of which contained police photographs of appellant, William L. Garner. Tolliver identified Garner as the "William" he had transported the night before in both of the two photo arrays which included Garner's photograph.

As a result of the information received from Tolliver, police obtained a search warrant and searched the Burnet Avenue residence where "William" had been taken by Tolliver. Police there recovered several items which matched descriptions Tolliver had given of items his passenger had brought to the cab from the Knob Court address. Police recovered a VCR, a Sony "boom box," and a portable telephone, as well as a pair of gloves, a set of keys later identified as Addie Mack's, and copies of her children's birth certificates. Police photographed a UDF grocery bag in a trash can at the residence. During the search police arrested Garner, in connection with the fire, and advised him of his Miranda rights.

Garner was interviewed at police headquarters, where he provided a taped statement in which he described events of the previous night. He recounted having found Mack's purse near a pay telephone in the emergency room area of the hospital, and obtaining Mack's address, food stamps, and keys from the purse. He admitted calling a cab and being transported to the Knob Court address. Garner acknowledged that his intent in going to Mack's apartment was to "take her things." Garner described going through the rooms in the apartment, and noticing that a back bedroom was "full o[f] girls". He described talking to one girl who asked him for water, and providing it to her. Garner said the girl then turned on a television set for a few minutes before going back to the room where the other girls were sleeping. Garner also admitted having been in the bedroom in which the two boys were sleeping.

Garner admitted taking a television set, a VCR, a telephone, and a "radio box" from the apartment, and putting them in the cab. He described telling the driver that he and his girlfriend had a "fallin[g] out," forcing him to move his possessions. He admitted setting one fire at Mack's apartment by throwing a lighted match onto a couch on the first floor, and confirmed watching a small flame ignite in the couch. He then left the apartment with the final stolen item (the television) and directed the cab driver to make a stop at a UDF convenience store. Garner said he there purchased several items before instructing the driver to take him to his residence at 3250 Burnet Avenue.

When asked why he had set the couch on fire, Garner stated that he had intended to create a smoke screen and to cover fingerprints he suspected he had left on the couch. He told police that he believed the children would smell the smoke and get out of the house, particularly as he believed one child to be awake, and that all of the children were old enough to get out.

Rod Mack, the sole survivor of the fire, testified that he and his friend, Richard Gaines, were sleeping in one of the upstairs bedrooms on the night of the fire, and that all four girls were sleeping together in a second bedroom. Mack testified that the "radio" (Sony boom box) found by police at appellant's residence was his, and had been in his bedroom on the night of the fire. He testified that the receiver portion of a two-piece cordless phone (later recovered during the police search of Garner's residence) had been located in the bedroom where all of the girls had been sleeping. He testified that the VCR recovered from appellant's residence had been located in a third bedroom, his mother's room.

Rod described being awakened by smoke, seeing fire in the hallway outside his bedroom, and hearing his sisters screaming in their room. Finding the hallway blocked by fire, Rod told his friend Richard to follow him out a bedroom window. As Rod exited through the window, Richard instead opened the door to the hall. As Rod continued his escape, he heard Richard fall to the floor, where his body was ultimately found by firefighters.

A smoke detector was found in the apartment after the fire, but did not contain a battery, and was thus inoperable.

Following the fire, Cincinnati Fire Division investigator Peter Frye concluded that, in addition to an intentional fire having been set in the living room couch, two other fires were intentionally set in the apartment. One fire was set in a bed in the mother's unoccupied bedroom, and one in a bed in the remaining unoccupied fourth bedroom. The latter two fires had smoldered but eventually gone out. Frye testified that the fire originating in the couch almost totally destroyed the contents of the living room, and resulted in heavy smoke filling the entire apartment.

Garner was indicted and charged with five counts of aggravated felony-murder (R.C. 2903.01[B] ). Each count included three death penalty specifications. In addition, Garner was charged with aggravated burglary (R.C. 2911.11), and two counts of aggravated arson (R.C. 2909.02). A jury found Garner guilty of all charges, including the death penalty specifications. Thereafter the jury returned a recommendation that he be sentenced to death, and that recommendation was accepted by the trial court.

The court of appeals affirmed Garner's convictions and death sentence, and the cause is now before this court upon an appeal as of right.

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Christian J. Schaefer, Assistant Prosecuting Attorney, Cincinnati, for appellee.

H. Fred Hoefle and Robert J. Ranz, Cincinnati, for appellant.

MOYER, Chief Justice.

Appellant has raised twenty-three propositions of law. We have reviewed each and, for the reasons stated below, we find that none justifies reversal of appellant's conviction of the crimes of aggravated murder, aggravated burglary and aggravated arson. We have fulfilled our responsibilities to independently review the record, weigh the aggravating circumstances against the mitigating factors, and examine the proportionality of a sentence of death in this case. Upon full review of the record we affirm appellant's convictions and death sentence.

I Failure to Merge Specifications

The jury found Garner guilty of three statutory death penalty specifications as to each murder: engaging in a course of conduct on January 26, 1992 involving the killing of two or more persons (R.C. 2929.04[A] ); committing the aggravated murders for the purpose of escaping detection, apprehension, trial or punishment for another offense (R.C. 2929.04[A] ); and committing the aggravated murders, as a principal offender, while committing or fleeing immediately after committing aggravated burglary and aggravated arson (R.C. 2929.04[A] ). Garner claims reversible error in the trial court's denial of his motion to merge the R.C. 2929.04(A)(3) and (A)(7) specifications, and to instruct the jury that they should be weighed as one aggravating circumstance in determining the appropriate sentence.

The law governing our resolution of this contention is set forth in the fifth paragraph of the syllabus of STATE V. JENKINS (1984), 15 OHIO ST.3D 164, 15 OBR 311, 473 N.E.2D 264,¹ which provides:

"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...