686 N.E.2d 245 (Ohio 1997), 96-452, State v. Davie

Docket Nº:96-452.
Citation:686 N.E.2d 245, 80 Ohio St.3d 311, 1997-Ohio-341
Opinion Judge:Pfeifer, J.
Party Name:The STATE of Ohio, Appellee, v. DAVIE, Appellant.
Attorney:Dennis Watkins, Trumbull County Prosecuting Attorney, Patrick F. McCarthy and Deborah L. Smith, Assistant Prosecuting Attorneys, for appellee., Reinhart Law Office and Harry R. Reinhart, Columbus; and Carol A. Wright, for appellant. Dennis Watkins, Trumbull County Prosecuting Attorney, Patrick F...
Case Date:November 26, 1997
Court:Supreme Court of Ohio

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686 N.E.2d 245 (Ohio 1997)

80 Ohio St.3d 311, 1997-Ohio-341

The STATE of Ohio, Appellee,


DAVIE, Appellant.

No. 96-452.

Supreme Court of Ohio.

November 26, 1997

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Submitted Feb. 18, 1997.

Dennis Watkins, Trumbull County Prosecuting Attorney, Patrick F. McCarthy and Deborah L. Smith, Assistant Prosecuting Attorneys, for appellee.

Reinhart Law Office and Harry R. Reinhart, Columbus; and Carol A. Wright, for appellant.

PFEIFER, Justice.

Appellant has raised twenty-eight propositions of law. We have reviewed each and have determined that none justifies reversal of appellant's convictions for aggravated murder and the other crimes he committed. We have also independently weighed the aggravating circumstances against the evidence presented in mitigation, and reviewed the death penalty for appropriateness and proportionality. For the reasons that follow, we affirm appellant's convictions and death sentence.

Pretrial Issues

In his first proposition of law, Davie raises two interrelated claims of error. First, Davie, who is African American, argues that the trial court intimidated one of the prospective jurors when that juror questioned why there was a lack of African Americans in the jury pool.

When the juror in question asked the judge about the jury pool, the judge explained the jury selection process. The juror was not satisfied with the judge's explanation, saying, "It's kind of strange that you have 50,000 people in the City of Warren and there's only one black man here." The trial judge called counsel to the bench, and, thereafter, Davie's attorney moved for the jury list to be supplemented.

Soon thereafter, the judge and the prospective juror had another colloquy. The judge asked the juror if he was asking to be excused, and when making that [80 Ohio St.3d 316] inquiry asked, "[D]o I smell alcohol on you?" The juror at first responded, "I don't think so." Later, he denied that he had been drinking.

The judge asked the juror if he had spoken to a reporter about the case. The juror denied it. However, when called before the bench, a reporter did state that she had spoken to the juror about the makeup of the jury pool. The judge admonished the juror and threatened him with contempt for future transgressions.

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Second, Davie asserts that the trial court's refusal to grant his motion to supplement the annual list of potential jurors with a list of licensed drivers deprived him of an impartial jury from a fair cross-section of the community.

Davie contends that the exchange between the judge and juror was outrageous and reflected a bias by the trial judge against protecting his rights. While the colloquy between the trial judge and prospective juror was unfortunate, it was not prejudicial to the rights of defendant.

In these types of situations, we defer to the actions of the trial judge, who was in the best position to respond appropriately to any inquiries. See, generally, Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 10 OBR 408, 411, 461 N.E.2d 1273, 1276. It has been long held that determination of issues raised in voir dire in criminal cases is within the discretion of the trial judge. State v. Beuke (1988), 38 Ohio St.3d 29, 39, 526 N.E.2d 274, 285.

In any event, the record shows that the trial judge had forbidden all prospective jurors from discussing "anything about this case with anyone else, including other prospective jurors." Thus, the court was justified in interrogating this prospective juror concerning an apparent conversation with a news reporter. The trial judge's inquiries as to whether the prospective juror had consumed alcohol were legitimate. The prosecutor also thought that he smelled alcohol.

The exchange at issue indicates that the trial judge engaged in tough questioning, but he did not show any bias against Davie. If such a bias was obvious, defense counsel should have raised some concern at that time. The record, however, reveals no action taken by defense counsel.

Davie's claim that exclusive use of voter registration lists in jury selection deprived him of an impartial jury representing a fair cross-section also lacks merit. Utilization of voter rolls alone to choose prospective jurors is constitutional. See, e.g., State v. Johnson (1972), 31 Ohio St.2d 106, 60 O.O.2d 85, 285 N.E.2d 751, paragraph two of the syllabus; State v. Hill (1992), 64 Ohio St.3d 313, 325-326, 595 N.E.2d 884, 895. Davie has not demonstrated an unfair lack of representation of African Americans in Trumbull County juries, nor has he shown that such alleged underrepresentation resulted from a systematic exclusion by [80 Ohio St.3d 317] the state of that particular group. See State v. Puente (1982), 69 Ohio St.2d 136, 138, 23 O.O.3d 178, 179, 431 N.E.2d 987, 989.

In proposition II, Davie contends that he was denied a fair trial when the trial judge implied that he was dangerous by requesting the jury to remain seated while deputies removed him from the courtroom.

Given the fact that Davie failed to object to the comment, any error is waived except plain error. State v. Slagle (1992), 65 Ohio St.3d 597, 604, 605 N.E.2d 916, 925. The comment in issue was brief, isolated, and not prejudicial. The trial court's direction to the jury to remain seated did not rise to the level of the "constant reminder" of prison garb or shackles noted in Estelle v. Williams (1976), 425 U.S. 501, 504, 96 S.Ct. 1691, 1693, 48 L.Ed.2d 126, 131. Moreover, his comment fairly related to the trial court's authority to control proceedings under R.C. 2945.03. Plain error is also absent.

Davie further contends that his rights were infringed when the trial court characterized his voluntary statement to police officers as a "confession." This characterization was made off the record. The trial judge instructed the jury that only it could determine whether Davie's statement was a confession. Thus, even assuming that the jury heard the judge refer to the statement as a confession, this court will presume that the jury followed the judge's curative instruction. State v. DePew (1988), 38 Ohio St.3d 275, 284, 528 N.E.2d 542, 553.

In proposition VIII, Davie argues that the trial court denied him a fair trial by refusing to use his proposed jury questionnaire. However, this is a matter of discretion for the trial court, and no abuse of discretion occurred. State v. Mills (1992), 62 Ohio St.3d 357, 365, 582 N.E.2d 972, 981. Moreover, the court submitted its own questionnaire and allowed defense counsel to

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freely question prospective jurors during voir dire.

In proposition X, Davie submits that the trial court erred in permitting the prosecutor to exercise peremptory challenges to two prospective jurors who expressed reservations about the death penalty. However, apart from excluding jurors based on race or gender, prosecutors can exercise a peremptory challenge for any reason, without inquiry, and without a court's control. State v. Seiber (1990), 56 Ohio St.3d 4, 13, 564 N.E.2d 408, 419; State v. Ballew (1996), 76 Ohio St.3d 244, 253, 667 N.E.2d 369, 379. See, also, State v. Esparza (1988), 39 Ohio St.3d 8, 14, 529 N.E.2d 192, 198.

In proposition XXV, Davie argues that the multiplicitous indictment against him for a single act of criminal conduct violates double jeopardy. Davie's double jeopardy argument is similar to the one we rejected in State v. Grant (1993), 67 Ohio St.3d 465, 474, 620 N.E.2d 50, 63. In Grant, this court upheld the constitutionality of Ohio's statutory scheme of punishment, noting that the General Assembly intended that each offense be separately punished. See, also, [80 Ohio St.3d 318] State v. Guyton (1984), 18 Ohio App.3d 101, 103-104, 18 OBR 464, 467, 481 N.E.2d 650, 653-654.

Davie also alleges that use of an aggravating circumstance in Ohio's capital sentencing scheme which merely repeats an element of the underlying crime is unconstitutional. However, Ohio's capital sentencing scheme is constitutional. See State v. Henderson (1988), 39 Ohio St.3d 24, 528 N.E.2d 1237, paragraph two of the syllabus.

Finally, we reject Davie's claim that the trial court erred in failing to merge the three R.C. 2929.04(A)(7) specifications in each murder count prior to trial.

The trial court did not err in failing to merge the specifications for kidnapping, aggravated burglary, and aggravated robbery. Here, the kidnapping took place when Davie gathered the three victims in the warehouse area, restrained them with a gun, and made them lie on the floor against their will. The aggravated burglary, Davie's entrance into the VCA premises with intent to commit a felony, was already complete prior to the kidnapping. The aggravated robbery, Davie's theft of his victims' belongings, took place after the kidnapping. See State v. Jenkins (1984), 15 Ohio St.3d 164, 197-198, 15 OBR 311, 340, 473 N.E.2d 264, 295.

Trial Issues

In proposition III, Davie asserts prejudicial error in the admission of inflammatory and gruesome photos, slides, and videotapes of the victims, as well as cumulative diagrams highlighting the numerous wounds on the victims.

With respect to the photographs, the trial judge carefully reviewed each one and excluded fourteen. Although defense counsel objected to State's Exhibits 35 and 46 as repetitive, the court found that each depicted a different side of Jefferys's body. Four of the photos depicting bruises and abrasions on Jefferys's body are repetitive of several autopsy...

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