State v. Archie J. Dixon

• Decision Date: 17 November 2000
• Docket Number: L-96-004,00-LW-5201
• Parties: State of Ohio, Appellee v. Archie J. Dixon, Appellant Court of Appeals
• Court: Ohio Court of Appeals

State of Ohio, Appellee v. Archie J. Dixon, Appellant

No. L-96-004

00-LW-5201 (6th)

Court of Appeals of Ohio, Sixth District Lucas

November 17, 2000

Trial Court No. CR93-7212B

Julia R. Bates, prosecuting attorney, and Craig Pearson, for appellee.

Jeffrey M. Gamso and Annette L. Powers, for appellant on direct appeal.

Gordon S. Friedman, for appellant on postconviction appeal.

OPINION

KNEPPER P.J.

This is a consolidated appeal from two judgments of the Lucas County Court of Common Pleas. The first judgment, following a jury trial, found appellant guilty of three counts of aggravated murder, one count of kidnaping, one count of aggravated robbery and three counts of forgery. (Case No CR93-7212) As to the aggravated murder convictions, appellant was sentenced to be put to death. As to all of the other counts, appellant was sentenced to a total period of incarceration of not less than twenty-four and one-half years nor more than fifty years. The second judgment denied appellant's petition for postconviction relief filed eleven months after sentence was imposed. (Case No CR93-7212B) On January 23, 1998, this court ordered the two appeals consolidated. We will first consider appellant's direct appeal.

DIRECT APPEAL

In the direct appeal, appellant sets forth the following assignments of error:

"FIRST ASSIGNMENT OF ERROR:

"MR. DIXON WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

"SECOND ASSIGNMENT OF ERROR:

"THIS COURT ERRED IN CASE NO. L-94-223, STATE OF OHIO V. ARCHIE J. DIXON WHEN IT RULED THAT A STATEMENT MADE BY MR. DIXON WAS ADMISSIBLE AGAINST HIM BECAUSE (A) THE STATEMENT WAS NOT PROPERLY ADMISSIBLE, AND (B) THERE HAD NEVER BEEN A DETERMINATION OF VOLUNTARINESS BY THE TRIAL COURT.

"THIRD ASSIGNMENT OF ERROR:

"THE TRIAL COURT DENIED MR. DIXON HIS RIGHTS TO DUE PROCESS UNDER THE CONSTITUTIONS OF THE UNITED STATES AND THE STATE OF OHIO WHEN IT FAILED TO CONDUCT AN INQUIRY AS TO WHETHER HE KNOWINGLY AND INTELLIGENTLY WAIVED HIS RIGHT TO TESTIFY AT TRIAL.

"FOURTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT INSTRUCTED THE JURY THAT IT COULD ASSUME MR. DIXON'S GUILT AND THAT THE ASSUMPTION WOULD REQUIRE A GUILTY VERDICT. TR 1252-1253.

"FIFTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT VIOLATED MR. DIXON'S RIGHTS TO A FAIR TRIAL, TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT, AND TO DUE PROCESS UNDER THE CONSTITUTIONS OF THE UNITED STATES AND OF THE STATE OF OHIO WHEN IT REFUSED TO PERMIT MR. DIXON TO PRESENT RELEVANT AND ADMISSIBLE MITIGATING EVIDENCE AS TO: (A) PROSECUTIONS FOR AGGRAVATED MURDER IN THE KILLINGS OF JASON MERICLE AND MELISSA ANN HERSTRUM [TR 1337-1339]; (B) MR. DIXON'S LONG-STANDING OFFER TO ENTER A PLEA TO THE INDICTMENT IN EXCHANGE FOR THE STATE DISMISSING THE DEATH SPECIFICATIONS [1339]; (C) MR. DIXON'S PRIOR INCARCERATION ON FALSE CHARGES OF RAPE [1350-1351].

"SIXTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT COMMITTED PREJUDICIAL ERROR AND DENIED MR. DIXON HIS RIGHTS TO MOUNT THE DEFENSE OF HIS CHOICE, TO DUE PROCESS OF LAW, AND TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT WHEN IT INSISTED OVER HIS OBJECTION ON INSTRUCTING THE JURORS TO WEIGH THE HISTORY, CHARACTER, AND BACKGROUND OF THE DEFENDANT AFTER THE COURT PRECLUDED HIM FROM INTRODUCING THE ONLY EVIDENCE HE OFFERED ON HIS HISTORY, CHARACTER, AND BACKGROUND. TR 1459-1463.

"SEVENTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT COMMITTED PREJUDICIAL ERROR AND DENIED MR. DIXON HIS RIGHTS TO MOUNT THE DEFENSE OF HIS CHOICE, TO DUE PROCESS OF LAW, AND TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT WHEN IT INSISTED OVER HIS OBJECTION ON INSTRUCTING THE JURORS TO WEIGH THE NATURE AND CIRCUMSTANCES OF THE OFFENSE AGAINST THE AGGRAVATING CIRCUMSTANCES WHEN MR. DIXON SET FORTH NEITHER EVIDENCE NOR ARGUMENT SUGGESTING THAT THE NATURE AND CIRCUMSTANCES OF THE OFFENSE WERE IN ANY WAY MITIGATING. TR. 1459-1462.

"EIGHTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT'S R.C. 2929.03(F) OPINION IS SO FUNDAMENTALLY FLAWED THAT IT DENIES MR. DIXON HIS RIGHTS TO A FAIR TRIAL, TO DUE PROCESS, AND TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT AS PROTECTED BY THE CONSTITUTIONS OF THE UNITED STATES AND OF THE STATE OF OHIO, AND NO INDEPENDENT REVIEW CAN CURE ITS ERRORS. SPECIFICALLY, THE OPINION IGNORES PROPERLY ADMISSIBLE AND RELEVANT MITIGATION EVIDENCE MR. DIXON ATTEMPTED TO PLACE BEFORE THE JURY, SPECULATES UPON FACTS NOT IN EVIDENCE, FAILS UTTERLY TO EXPLAIN WHY THE AGGRAVATING CIRCUMSTANCES IN THIS CASE OUTWEIGHED THE MITIGATING FACTORS, AND IMPROPERLY AND PREJUDICIALLY WEIGHS HE NATURE AND CIRCUMSTANCES OF THE OFFENSE AGAINST THE MITIGATING FACTORS.

"NINTH ASSIGNMENT OF ERROR:

"INSOFAR AS ANY OF THE ASSIGNED ERRORS COMPLAINED OF WERE NOT ADEQUATELY PRESERVED, TRIAL COUNSEL PROVIDED MR. DIXON WITH CONSTITUTIONALLY INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THEIR DUTY AND IN VIOLATION OF HIS RIGHTS TO FAIR TRIAL AND DUE PROCESS AND TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT.

"TENTH ASSIGNMENT OF ERROR:

"THE CUMULATIVE EFFECT OF THE ERRORS ADDRESSED WAS PREJUDICIAL AND REQUIRES REVERSAL EVEN IF NONE OF THE ERRORS IS HELD TO HAVE BEEN INDIVIDUALLY SO HARMFUL AS TO REQUIRE REVERSAL

"ELEVENTH ASSIGNMENT OF ERROR:

"OHIO'S DEATH PENALTY LAW AS APPLIED VIOLATES R.C. 2929.05(A) BY REQUIRING APPELLATE COURTS AND THE SUPREME COURT, IN CONDUCTING THEIR R.C. 2929.05(A) REVIEW OF "SIMILAR CASES" FOR PROPORTIONALITY, TO REVIEW ONLY THOSE IN WHICH A SENTENCE OF DEATH WAS IMPOSED AND IGNORE THOSE IN WHICH A SENTENCE OF LIFE WITH PAROLE ELIGIBILITY AFTER TWENTY FULL YEARS OR LIFE WITH PAROLE ELIGIBILITY AFTER THIRTY FULL YEARS WAS IMPOSED. THIS APPLICATION OF R.C. 2929.05(A) ALSO VIOLATES THE RIGHTS TO FAIR TRIAL AND DUE PROCESS AND RESULTS IN THE IMPOSITION OF CRUEL AND UNUSUAL PUNISHMENT AS SET FORTH IN THE FIFTH, SIXTH, EIGHTH, NINTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND IN SECTIONS 1, 5, 9, 10, 16, AND 20, ARTICLE I OF THE OHIO CONSTITUTION.

"TWELFTH ASSIGNMENT OF ERROR:

"IMPOSITION OF THE DEATH PENALTY, AT LEAST IN LUCAS COUNTY, OHIO, IS FREAKISH, CAPRICIOUS, AND ARBITRARY.

"THIRTEENTH ASSIGNMENT OF ERROR:

"OHIO'S DEATH PENALTY LAW IS UNCONSTITUTIONAL

"FOURTEENTH ASSIGNMENT OF ERROR:

"THE AGGRAVATING CIRCUMSTANCES DO NOT OUTWEIGH THE MITIGATING FACTORS BEYOND A REASONABLE DOUBT; THE DEATH SENTENCE IN THIS CASE IS INAPPROPRIATE; AND THE DEATH SENTENCE IN THIS CASE IS OUT OF PROPORTION TO SENTENCES IN OTHER CASES REVIEWED BY THIS COURT"

Facts

In the early morning hours of September 22, 1993 twenty-two-year-old Christopher Hammer was beaten severely, bound and gagged, buried in a grave in a secluded area of Lucas County while still conscious, and left to die. On November 16, 1993, as a result of the investigation of Hammer's disappearance, appellant was indicted on three counts of aggravated murder in violation of R.C. 2903.01(A) and (B), with specifications as to each count, pursuant to R.C. 2929.04(A)(7) and 2941.14, that the murder was committed during the course of an aggravated robbery and during a kidnaping; one count of kidnaping in violation of R.C. 2905.01(A); one count of aggravated robbery in violation of R.C. 2911.01(A)(2), and three counts of forgery in violation of R.C. 2913.31. On November 17, 1993, counsel was appointed for appellant and he entered pleas of not guilty as to all counts and specifications.

Appellant filed many pre-trial motions, but only those relevant to issues raised on appeal are summarized herein. On January 27, 1994, appellant filed a motion to suppress statements he had made to the police on November 9, 1993 following his arrest, including a confession to Hammer's murder. A hearing was held on the motion and on August 23, 1994, the trial court granted the motion to suppress two statements, one of which was appellant's confession. The state appealed the granting of the motion to suppress pursuant to R.C. 2945.67 and Crim.R. 12(J). On appeal, the state challenged only the suppression of appellant's confession. On March 3, 1995, this court reversed the trial court's order suppressing the confession and remanded the matter. State v. Dixon (1995), 101 Ohio App.3d 552. Appellant filed a notice of appeal to the Supreme Court of Ohio and on July 19, 1995, that court denied leave to appeal and dismissed the matter as not involving a substantial constitutional question. State v. Dixon (1995), 73 Ohio St.3d 1410. On January 16, 1996, the United States Supreme Court denied appellant's petition for a writ of certiorari. Dixon v. Ohio (1996), 516 U.S. 1077.

Appellant's trial began on October 30, 1995 and concluded on November 6, 1995. On November 7, 1995, the jury returned verdicts of guilty as to all counts and specifications in the indictment. The mitigation phase of the trial began on November 8, 1995, and on the following day, the jury recommended imposition of the death sentence as to the aggravated murder convictions. In a judgment entry filed November 22, 1995, the trial court accepted the jury's recommendation. The trial court found that, for purposes of sentencing, the convictions on the second and third counts of aggravated murder merged with the conviction on the first count and ordered, as to the first count, that appellant be put to death. The trial court imposed consecutive sentences totaling not less than twenty-four nor more than fifty years on the convictions for aggravated robbery, kidnaping and forgery. On December 6, 1995, the trial court filed a separate opinion in support of its finding that the aggravating circumstances of this case outweigh the mitigating factors beyond a reasonable doubt.

This court will review appellant's conviction and death sentence imposed pursuant to the three-part test set forth in R.C. 2929.05(A). First, we must address appellant's assignments of error....