State v. Bey

• Decision Date: 19 May 1999
• Docket Number: No. 97-2247,97-2247
• Citation: State v. Bey, 85 Ohio St.3d 487, 709 N.E.2d 484 (Ohio 1999)
• Parties: The STATE of Ohio, Appellee, v. BEY, Appellant.
• Court: Ohio Supreme Court

Page 487

85 Ohio St.3d 487

709 N.E.2d 484

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

No. 97-2247.

Supreme Court of Ohio.

Submitted Feb. 9, 1999.

Decided May 19, 1999.

[709 N.E.2d 489] This appeal stems from the conviction and death sentence of Gregory L. Bey, alias Gregory L. Bryant-Bey, defendant-appellant, for the aggravated murder and the aggravated robbery of Dale Pinkelman.

Pinkelman's body was found near a back office inside Pinky's Collectibles ("Pinky's"), a retail store opened by Pinkelman that sold various items, including watches. His shoes were lying next to his body, but his trousers were missing.

Deputy Coroner Cynthia Beisser concluded that Pinkelman died within a few minutes "as a result of a [single] stab wound to the chest."

Although when found Pinkelman's body still wore a gold necklace and a ring and a watch on each hand, merchandise was missing from the store's inventory.And despite the fact that Pinkelman customarily left $100 in loose currency in the register drawer and then placed the drawer in a storage room, the register was open, and the cash drawer, still in the register, had no visible currency.Additionally, Pinkelman's station wagon, which had been parked in front of the store the previous day, was missing.

Police found an unknown fingerprint and palm print on top of a glass display case approximately three feet in front of Pinkelman's body.Police also recovered Pinkelman's abandoned station wagon.But police never found Pinkelman's trousers or the murder weapon.

The Pinkelman homicide remained unsolved until Toledo police arrested Bey three months after the Pinkelman murder for the aggravated murder of Peter Mihas.Police were called to a Toledo restaurant, after Mihas, the restaurant owner, was found stabbed to death.Toledo Detective William Gray immediately noticed similarities between the Mihas homicide and the unsolved Pinkelman homicide.The trousers of both victims had been removed, and their shoes were lying next to their bodies.And both victims were owners of small businesses who were robbed and killed by being stabbed in the chest when they were evidently alone at their businesses.Additionally, both victims still had jewelry on their persons.

Police interviewed Bey regarding the Mihas homicide, and Bey admitted that he had killed Mihas.Then, after Bey's finger and palm prints were taken, his prints were found to match the latent prints found on top of the glass case in Pinky's.And Bey lived two blocks from where police had found Pinkelman's station wagon.

The next day, police interviewed Bey concerning the Pinkelman homicide.Bey at first denied ever meeting Pinkelman and ever being in Pinky's.Then Bey admitted that he had purchased a watch at Pinky's as a gift for his wife.He stated that he"owed" Pinkelman around $300 for the watch and that he"was asking [Pinkelman] for some time," but that Pinkelman "dogged" him for money.When asked if he had harmed Pinkelman or if he had taken his car, Bey said that he did not remember.Bey then refused to talk any further.

The grand jury indicted Bey on four counts.Counts I and III charged the aggravated murder of Pinkelman and Mihas, respectively, under R.C. 2903.01(B), and both counts contained a death-penalty specification under R.C. 2929.04(A)(7), charging aggravated murder in the course of an aggravated robbery and naming Bey as the principal offender.Counts II and IV charged the aggravated robbery against Pinkelman and Mihas, respectively, and each contained a prior felony-conviction specification.The trial court granted Bey's motion to sever.

Bey was then separately tried for and convicted of the aggravated felony-murder and aggravated robbery of Mihas and sentenced to life imprisonment.SeeState v. Bryant-Bey (Mar. 10, 1995), Lucas App.No. L-93-184, unreported, 1995 WL 96783, discretionary appeal denied (1995), 73 Ohio St.3d 1411, 651 N.E.2d 1308, certiorari denied(1996), 516 U.S. 1077, 116 S.Ct. 784, 133 L.Ed.2d 734.In the case now pending before us, the jury convicted Bey of the aggravated murder of Pinkelman, including a felony-murder death-specification, as well as aggravated robbery.Following a penalty hearing, the jury recommended the death penalty.The trial court agreed and sentenced Bey to death and to a prison term for the aggravated robbery.At sentencing, the trial court found Bey guilty of the prior felony-conviction specification attached to the aggravated robbery charge.The court of appeals affirmed the convictions and death sentence.Bey now appeals here as a matter of right.

Craig T. Pearson, Lucas County Assistant Prosecuting Attorney, for appellee.

Jeffrey M. Gamso and Spiros P. Cocoves, Toledo, for appellant.

COOK, Justice.

In this appeal, Bey advances twenty-two propositions of law.(SeeAppendix, infra.)We have considered each of Bey's propositions of law, independently weighed the aggravating circumstance against mitigating factors, and reviewed the death penalty for appropriateness and proportionality.For the reasons that follow, we affirm Bey's convictions and the sentence of death.

I.Other Acts Issues

A.Proposition of Law I

In proposition of law I, Bey asserts that the trial court erred by admitting "other acts" evidence under Evid.R. 404(B) that Bey murdered Mihas.Bey argues that the trial court's pretrial judgment entry on Bey's motion to exclude any evidence relating to other crimes, wrongs, or acts failed to include an explicit Evid.R. 403 analysis regarding whether the prejudicial impact of the "other acts" evidence outweighed its probative value.Bey argues that the evidence of the Mihas murder should not have been admitted for any Evid.R. 404(B) reason because it is too prejudicial.

Evid.R. 403(A) establishes a standard but does not require a trial court to explicitly state in its judgment entry that the probative value of the "other acts" evidence outweighs its prejudicial impact.

As for whether the trial court should have excluded the evidence of the Mihas murder, we first note that "[t]he admission or exclusion of relevant evidence rests within the sound discretion of the trial court."State v. Sage(1987), 31 Ohio St.3d 173, 31 OBR 375, 510 N.E.2d 343, paragraph two of the syllabus.SeeState v. Finnerty(1989), 45 Ohio St.3d 104, 107, 543 N.E.2d 1233, 1237;State v. Hymore(1967), 9 Ohio St.2d 122, 128, 38 O.O.2d 298, 302, 224 N.E.2d 126, 130.For the following reasons, we determine that the trial court did not abuse that discretion by admitting the "other acts" evidence in this case.

Under Evid.R. 404(B), "[e]vidence of other crimes, wrongs, or acts is not admissible to prove"a defendant's criminal propensity."Other acts" evidence is admissible, however, if "(1) there is substantial proof that the alleged other acts were committed by the defendant, and (2) the evidence tends to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."State v. Lowe(1994), 69 Ohio St.3d 527, 530, 634 N.E.2d 616, 619;see, also, Evid.R. 404(B).Identity can be proven by establishing a modus operandi applicable to the crime with which a defendant has been charged.SeeLowe, 69 Ohio St.3d at 531, 634 N.E.2d at 619.But in order "[t]o be admissible to prove identity through a certain modus operandi, other acts evidence must be related to and share common features with the crime in question."Lowe, 69 Ohio St.3d 527, 634 N.E.2d 616, paragraph one of the syllabus;see, also, State v. Jamison(1990), 49 Ohio St.3d 182, 552 N.E.2d 180, syllabus ("Other acts forming a unique, identifiable plan of criminal activity are admissible to establish identity under Evid.R. 404[B].").For example, "evidence of 'other acts' to prove * * * the identity of the perpetrator is admissible where two deaths occur under almost identical circumstances."State v. Smith(1990), 49 Ohio St.3d 137, 551 N.E.2d 190, syllabus.

First, in this case, substantial proof existed that Bey committed the "other act" because Bey admitted that he had killed Mihas and was convicted of that crime.Second, the "other act" evidence established a "behavioral fingerprint" linking the appellant to the crime due to the common features shared by the Mihas homicide and the Pinkelman homicide.SeeLowe, 69 Ohio St.3d at 531, 634 N.E.2d at 619-620.The deaths of Mihas and Pinkelman occurred under practically identical circumstances.As the trial court noted, both victims were businessmen who were killed at their place of business, evidently in the absence of customers or employees.Both died after being stabbed in the chest by a knife.Uniquely, both men had their trousers removed and their shoes were placed next to their bodies.And although both businesses were robbed, jewelry was left on each person.

Admittedly, some differences existed because, unlike Pinkelman, Mihas suffered other stab wounds and the knife was left in Mihas's body.Also, Mihas's trousers, with the pockets turned out, were found at the crime scene.Nonetheless, "[a]dmissibility is not adversely affected simply because the other robberies differed in some details."Jamison, 49 Ohio St.3d at 187, 552 N.E.2d at 185.Bey had the opportunity to argue the different details to the jury, and the jury was to decide the weight to be accorded those differences.Accordingly, these facts demonstrate a similar method of operation and therefore the "other acts" evidence is probative of identity.

Bey's contention that the "other acts" evidence was unnecessary because other evidence was available to prove identity is meritless because we have recognized that "need is irrelevant to an Evid.R. 404(B) objection."State v. McNeill(1998), 83 Ohio St.3d 438, 442, 700 N.E.2d 596, 603.And the prejudicial impact of the "other acts" evidence was minimized because the trial court, at Bey's request, twice instructed the jury that it could consider the Mihas homicide evidence only on the disputed...