667 N.E.2d 369 (Ohio 1996), 95-1907, State v. Ballew

Docket Nº:95-1907.
Citation:667 N.E.2d 369, 76 Ohio St.3d 244, 1996-Ohio- 81
Opinion Judge:ALICE ROBIE RESNICK, Justice. ROGER L. KLINE, J. of the Fourth Appellate District, sitting for STRATTON, J.
Party Name:STATE of Ohio, Appellee, v. BALLEW, Appellant.
Attorney:Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald W. Springman, Jr., Assistant Prosecuting Attorney, for appellee. Becker, Reed, Tilton & Hastings and Robert R. Hastings, Jr., Cincinnati, for appellant. [76 Ohio St.3d 249]
Judge Panel:MOYER, C.J., and DOUGLAS, FRANCIS E. SWEENEY, Sr., PFEIFER, COOK and KLINE, JJ., concur.
Case Date:August 07, 1996
Court:Supreme Court of Ohio
 
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Page 369

667 N.E.2d 369 (Ohio 1996)

76 Ohio St.3d 244, 1996-Ohio- 81

STATE of Ohio, Appellee,

v.

BALLEW, Appellant.

No. 95-1907.

Supreme Court of Ohio.

August 7, 1996

Submitted May 1, 1996.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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On March 17, 1990, just after midnight, defendant-appellant Tyrone Ballew and four others forced their way into a house and

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removed Donald Hill. Then they beat Hill and drove him to a vacant lot, where he was shot three times. Shortly after the killing, police found Hill's body. That day, police arrested several of those involved, but were unable to locate Ballew and his accomplice Patrick Coffey.

In March 1990, Ballew had been attending college in Tennessee but also occasionally worked selling cocaine in Cincinnati. In Cincinnati, he stayed at apartments on Broadway and Lowell. His friends, Ulric "Shorty" Robinson and Michael "Bounce" Johnson, also sold drugs and may have worked for Ballew.

The week before the murder, Ballew, Johnson, and another man visited Hill's girlfriend. Ballew told her that Hill owed him money and he was looking for him. Ballew searched her house for Hill, advising her to tell Hill when she saw him, "I'm going to find him stinking."

Ballew's search for Hill proved unsuccessful. Ballew then asked Elvena Lewis (whose boyfriend owed Ballew $500) to find Hill, promising that if she did, she would not have to pay her boyfriend's debt to Ballew. On March 16, Lewis learned that Hill was staying at Charles Marshall's house and told Ballew.

With his friends Patricia Pearson, Iris Martin, Jerry Baskin, and Lewis, Ballew went to get Hill in Pearson's station wagon. They stopped first at Ballew's place on Broadway, where Ballew got a 9 mm handgun. Then they drove to Marshall's house. Failing to find Hill, they left.

The group later returned to Marshall's house. Lewis went in alone and found Hill there. Lewis tried to lure him out by telling him that she had money and asking him to go with her to buy drugs. When this ruse failed, Pearson, Martin and Lewis went to get more help, and Ballew and Baskin stayed to watch Marshall's house.

Pearson picked up "Bounce" Johnson, "Shorty" Robinson, and Coffey and drove back to Marshall's house. On the way back, Pearson stopped at the Lowell apartment, where Coffey obtained a shotgun and a 9 mm Baretta. He gave the Baretta to Robinson. Ballew had his own 9 mm handgun. [76 Ohio St.3d 245]

Around midnight, Lewis reappeared at Marshall's house, and Marshall let her in. Marshall had expected just Lewis, but Ballew, Coffey, Johnson, and Robinson rushed in behind Lewis and pushed Marshall aside. Coffey held a shotgun to Marshall's face and told him that if he "breathed hard," he "would be killed." Then Lewis told Coffey, "no, no, don't do that, he's not the one, * * * don't hurt him at all." Ballew and others went to the kitchen where Hill was.

In the kitchen, Ballew and Robinson began to beat Hill. Hill kept saying that he could get the money. Ballew said that he just wanted to talk, but Hill refused to leave with him. Then, Robinson picked Hill up off the floor, "walked" Hill out of the house, and the group dragged Hill to the car. As Hill and the group left, Marshall was told, "If you call the police, we'll be back." Despite the threat, police were called and investigated Hill's kidnapping.

Ballew, Hill, Coffey, Baskin, Johnson, Robinson, Martin, and Lewis got in the station wagon, and Pearson drove off. Within a few minutes, Lewis and Martin were let out, given $20, and told to take a cab home. After they got out, Coffey said to Hill, "I ought to shoot you right now and have no conscience in killing this man." Ballew said, "[A]in't nobody going to shoot nobody."

While in the car, Ballew and others kept asking Hill where his money was, and Hill kept replying that he would get the money. Hill was struggling and kicking, and Ballew hit him with his fist and his gun. The others also struck Hill. Ballew and Coffey told Pearson where to drive, and they eventually stopped at a vacant lot. There, all the men got out, and Pearson waited in the car.

All five men started to walk Hill down a slope in the vacant lot. Coffey left his shotgun in the car but took back his Baretta from Robinson. Some testimony indicates that Ballew still had his 9 mm pistol on him. At Coffey and Ballew's direction, Baskin stayed near the street as a lookout. While walking down the slope, Robinson asked if Ballew was going to shoot Hill. Ballew replied,

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"[A]ll I'm here to do is talk to the man and to scare the man."

At the bottom of the slope, Coffey and Ballew kept asking Hill for money. Several of the men hit Hill with their fists, and Johnson used a stick. Hill, on his knees or sitting on the ground, pleaded to be let alone. Then, Johnson and Robinson left Coffey and Ballew alone with Hill at the bottom of the slope. While at the top, Pearson, Baskin, Johnson, and Robinson heard several shots. Pearson claimed that Ballew returned before she heard three shots, but earlier she had sworn that she saw Baskin, instead of Ballew, return. Baskin and Johnson testified that only Coffey and Ballew were with Hill at the bottom of the slope when the shots were fired.

After the shots, everybody ran to the car. Coffey and Ballew arrived at the car last, but Hill was not with them. After Pearson drove off, Ballew told everyone to quiet down so Pearson would not be nervous while driving. Robinson [76 Ohio St.3d 246] reminded Ballew that he had said he would not kill Hill, but Ballew replied that "they had to do what they had to do." Baskin recalled that Coffey made a similar remark. Ballew also said to Coffey, "You didn't think I would go down there with you." Robinson was upset, but Ballew told him, "[E]verybody have to be strong about this." The group then split up, and Coffey and Ballew hid out and left town.

Around 1:45 a.m., March 17, Cincinnati police officers responded to a report of shots fired on Kerper Avenue. After a brief search, the officers found Hill's body in an overgrown, downward-sloping, vacant lot.

The coroner concluded that Hill, age fifty-six, died from "blood loss due to multiple gunshot wounds." Hill had been shot three times in the back, once on the right side, once on the left, and again near the neck. One bullet pierced his heart and both lungs, and another bullet struck his liver and a kidney. Hill also had recent blunt-force cuts and bruises on his head and wounds on his hand. Extensive needle tracks on Hill's arms and one leg evidenced repeated injections. Blood tests on Hill revealed the presence of cocaine, methadone, marijuana, and alcohol.

The coroner recovered two bullets from Hill's body and concluded that the same caliber bullets could have caused all three bullet wounds. A firearms examiner testified that these two bullets were fired from the same gun and were consistent with "90 grain Frontier 9 millimeter Luger ammunition." Police found a "Frontier" shell casing at the scene and unfired Frontier bullets at the Broadway address. Rifling characteristics on the bullets from Hill's body were similar to those made by Browning or Baretta 9 mm semiautomatic pistols, but police never recovered any weapons.

At trial, Ballew called Coffey as a key defense witness. Lewis, Pearson, Baskin, Johnson, and Robinson testified for the state; some did so reluctantly. Each had pled guilty to various offenses, in accordance with plea agreements, and some charges against them had been dismissed. Coffey pled guilty to the aggravated murder of Hill and received a life sentence, with parole eligibility after twenty-three years. At the time of trial, Coffey was in prison for bank robberies committed after Hill's murder.

Coffey claimed that he, not Ballew, organized and directed the burglary and Hill's kidnapping because Hill owed him money. Ballew was simply "fronting" for Coffey. Coffey testified that Hill left Marshall's house "on his own recognizance," i.e., voluntarily. Coffey denied any prior plan to kill Hill and claimed he just wanted Hill to pay his debts. According to Coffey, Ballew never had a gun that evening, and Coffey controlled the only guns: a shotgun and a 9 mm Baretta. Coffey claimed that Ballew was at the bottom of the hill only momentarily, and then left. Hill began "talking crazy," cursing Coffey, and refusing to [76 Ohio St.3d 247] pay. Hence, Coffey shot Hill three times "in a heat of rage," on a sudden impulse, with "no prior calculation."

The jury convicted Ballew, as charged, on two counts of aggravated murder; Count One alleged prior calculation and design, and Count Two charged murder during kidnapping. Both counts contained a death-penalty specification charging murder during a kidnapping; the trial court merged the two murder counts for penalty purposes. The

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jury also convicted Ballew of kidnapping (Count Three) and aggravated burglary (Count Four). Additionally, each count contained firearm specifications, for which the jury returned guilty verdicts.

At the sentencing phase of the trial, Ballew presented the testimony of several witnesses, mostly by deposition. Tarji Thomas, Ballew's girlfriend, met him during the summer of 1990 in Seattle, and Ballew lived there as a fugitive for over a year. Thomas described Ballew as a "concerned" and "sweet" person, who worked, went to church, and was involved in youth activities and basketball clinics. Ballew was nonviolent and not involved in illegal activities. Minerva Grayson, Ballew's Seattle landlady, thought he was a "pretty nice guy." Ballew lived in her house for seven to eight months, worked, and promptly paid his bills. He also got along very well with her mother and teenage daughter.

Marilyn Matthews,...

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