State v. Adams

• Decision Date: 29 March 1978
• Docket Number: No. 77-493,77-493
• Citation: 53 Ohio St.2d 223,7 O.O.3d 393,374 N.E.2d 137
• Parties: , 7 O.O.3d 393 The STATE of Ohio, Appellee, v. ADAMS, Appellant.
• Court: Ohio Supreme Court

Page 223

53 Ohio St.2d 223

374 N.E.2d 137, 7 O.O.3d 393

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

No. 77-493.

Supreme Court of Ohio.

March 29, 1978.

Syllabus by the Court

1. A defendant has no standing to contest the search of an automobile and seizure of evidence therefrom where (1) the defendant was not present when the search and seizure occurred; (2) the defendant alleges no proprietary interest in the automobile; and (3) the defendant is not charged with an offense which includes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and seizure. (Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 575.)

2. The several counts of an indictment containing more than one count are not interdependent and an inconsistency in a verdict does not arise out of inconsistent responses to different counts, but only arises out of inconsistent responses to the same count. (Browning v. State, 120 Ohio St. 62, 165 N.E. 566, approved and followed.)

3. As a general rule, the introduction of evidence tending to show that a defendant has committed other crimes wholly independent of the offense for which he is on trial is prohibited. (State v. Hector, 19 Ohio St.2d 167, 249 N.E.2d 912, approved and followed.)

Eugene L. Adams, appellant herein, was indicted in Franklin County for aggravated robbery and aggravated murder in a two-count indictment. The first count of the indictment charged appellant and one Thomas D. Deal with violating R.C. 2911.01, in attempting or committing a theft offense as defined in R.C. 2913.01 while having a deadly weapon on or about their persons or under their control. The second count charged appellant and Deal with purposely causing the death of Marlyn J. Darst while committing, attempting to commit, fleeing immediately after committing or attempting to commit aggravated robbery, with a specification under R.C. 2929.04(A)(7), in compliance with R.C. 2941.14, that the offense was committed while the offenders were committing, attempting to commit or fleeing immediately after committing aggravated robbery.

At appellant's trial, the evidence established that Marlyn J. Darst, while working at a carry-out store, was shot twice and died as a result of those wounds. There was evidence that money had been taken from the cash register of the store.

Rena Darst, the ten-year old daughter of the deceased , testified that on the night of the crime, having heard "something like a bang," she entered the store which her mother had been tending, and saw her mother lying on the floor kicking at a man with a gun, who was wearing a stocking pulled over his head. She saw him shoot her mother twice. Rena failed to identify the appellant at trial, but there was other testimony that the appellant had changed the style and color of his hair since the date of the crime. She did pick his photograph from a group of six pictures shown to her by a policeman a few days after the crime.

At the trial, she identified a certain jacket as the one worn by the man with the gun. Two other witnesses testified that that same jacket was the one the appellant was wearing on the night of the crime.

Three witnesses saw the assailant get into a waiting car, and all three descriptions of the car agree. David A. West testified that on the day before the crime he rode to Lake Erie in a car that matched the eyewitness descriptions, with his uncle Tommy Deal, with the appellant, and with Margaret Etter, who is now Deal's wife. (Deal is charged in the same indictment with the defendant, and the state maintains that he drove the get-away car.) Having spent the night at the lake, West and the others returned to Columbus in the evening of the next day. West testified that after they reached Columbus, the appellant "said something about hitting a place on High Street." The store where the deceased was killed is on South High Street in Columbus. Deal and the appellant then left West and Margaret Etter at the home of West's sister and departed again. West testified that the two men returned shortly, and that he heard the appellant admit that he had shot a woman three times. Margaret Etter testified that the appellant was pale and nervous when he returned to the house with Deal, and that when she asked, "Why did you shoot the woman," he answered that it was because she had kicked him. West's sister also testified that she heard the appellant admit to shooting a woman. Later the same night, Margaret Etter, West and Deal took the appellant to Cincinnati. Etter testified that during the ride she again asked why the appellant had shot the woman, and that he repeated that it was because the woman had kicked him, and that he had said there had been a child present at the time.

West testified that, after leaving the appellant near Cincinnati, Etter, West and Deal returned to Lake Erie "to go get an alibi." Upon the group's return to Columbus, as soon as they stopped their car in front of West's home, the Columbus police arrested Deal, searched the car, and found a gun under the seat. The parties stipulated that the state's ballistics expert would testify that the fatal bullets removed from the body of the deceased were fired from that gun.

Appellant was tried to a jury, which returned a verdict of not guilty on the charge of aggravated robbery contained in count one of the indictment, and a verdict of guilty of the charge of aggravated murder contained in count two of the indictment. Appellant was subsequently sentenced to death.

Upon appeal, the Court of Appeals affirmed the judgment of the Court of Common Pleas and the cause is now before this court upon appeal as a matter of right.

George C. Smith, Pros. Atty., and David W. Hardymon, Columbus, for appellee.

Chris C. Tsitouris and Timothy D. Gerrity, Columbus, for appellant.

C. WILLIAM O'NEILL, Chief Justice.

Appellant's first contention is that the Ohio statutes relating to capital punishment, R. C. 2903.01, 2929.03 and 2929.04, are unconstitutional. This contention is without merit. State v. Bayless (1976), 48 Ohio St.2d 73, 357 N.E.2d 1035; State v. Black (1976), 48 Ohio St.2d 262, 358 N.E.2d 551; State v. Downs (1977), 51 Ohio St.2d 47, 364 N.E.2d 1140; State v. Shelton (1977), 51 Ohio St.2d 68, 364 N.E.2d 1152.

The second issue raised by appellant concerns the applicability of R. C. 2941.25(A) to his sentencing. That section reads:

"Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one."

Referring to the language of the second count of the indictment, appellant argues "that the elements of aggravated murder in the second count of the * * * indictment and the elements of the specification of aggravation attached were identical, and as such were committed simultaneously and with the same animus," and that "(t)he implication of the effect of the specification of aggravation is the imposition of the death penalty and as such it should be stricken pursuant to the code section herein cited (R. C. 2941.25(A))."

This argument is not well taken. As pointed out by appellee, the "(s) pecifications required for the imposition of the death penalty pursuant to Section 2929.04, Revised Code, do not constitute separate criminal offenses in and of themselves." Since the specification does not charge a separate offense and R. C. 2941.25(A) relates to instances where the same conduct of the defendant constitutes allied offenses of similar import, that statute is not applicable.

The third argument advanced by appellant is that the trial court erred in overruling his motion to suppress the murder weapon. The weapon was seized without a search warrant by police from the car owned by Margaret Etter, which was being operated by Thomas Deal, at a time when appellant was not present. In those circumstances, the overruling of the motion to suppress was not error. Brown v. United States (1973), 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 575.

In Brown, the defendant was charged with the federal crimes of transporting stolen goods and conspiring to transport stolen goods in interstate commerce. At the trial the prosecutor introduced the stolen merchandise, which had been seized from a store in Kentucky while the defendant was in custody in Ohio.

The United States Supreme Court held that the defendant had no standing to move to suppress the stolen goods because (1) he was not on the premises when the contested search and seizure occurred, (2) he alleged no possessory interest in the premises, and (3) he was not charged with an offense that included, as an essential element of the crime, possession of the seized items at the time of the search and seizure.

When Thomas Deal, Margaret Etter and David West returned from taking the defendant to Cincinnati, the Columbus police arrested Deal and searched the car. They found the murder weapon under the front seat. Whether the search was lawful or not, the appellant had no standing to move to suppress the gun. The car belonged to Margaret Etter, not to the appellant. The appellant was not anywhere near the car when the search and seizure occurred. Nor was the appellant charged with an offense...