State v. Broom

• Decision Date: 30 December 1988
• Docket Number: No. 87-1674,87-1674
• Citation: 40 Ohio St.3d 277,533 N.E.2d 682
• Parties: The STATE of Ohio, Appellee, v. BROOM, Appellant.
• Court: Ohio Supreme Court

Page 277

40 Ohio St.3d 277

533 N.E.2d 682

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

No. 87-1674.

Supreme Court of Ohio.

Submitted Nov. 1, 1988.

Decided Dec. 30, 1988. ^*

Syllabus by the Court

1. Because R.C. 2945.59 and Evid. R. 404(B) codify an exception to the common law with respect to evidence of other acts of wrongdoing, they must be construed against admissibility, and the standard for determining admissibility of such evidence is strict. (State v. Burson [1974], 38 Ohio St.2d 157, 158-159, 67 O.O.2d 174, 175, 311 N.E.2d 526, 528; State v. DeMarco [1987], 31 Ohio St.3d 191, 194, 31 OBR 390, 392, 509 N.E.2d 1256, 1259, followed.) The rule and the statute contemplate acts which may or may not be similar to the crime at issue. If the other act does in fact "tend to show" by substantial proof any of those things enumerated, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident, then evidence of the other act may be admissible. (State v. Flonnory [1972], 31 Ohio St.2d 124, 126, 60 O.O.2d 95, 96-97, 285 N.E.2d 726, 729, followed.)

2. The opinion of an experimental psychologist is not admissible regarding the credibility of a particular witness unless there is some special identifiable need for the testimony such as a physical or mental impairment which would affect the witness' ability to observe or recall details. Where no such need is shown we will not find an abuse of discretion by the trial court in denying the appointment of an expert on eyewitness identification pursuant to R.C. 2929.024, unless the defendant can make a showing of demonstrable prejudice.

In the fall of 1984 in the Cleveland area, three separate but related incidents occurred involving five young girls. The first incident occurred on September 18, 1984 between 8:15 and 9:00 p.m. Twelve-year-old Venita McKenney was walking to her home on East 120th Street, Cleveland, after visiting her cousins, when a car drove past her, turned around and parked. After Venita walked past the car, the driver got out of the car, grabbed her from behind, and threatened her with a knife. When she struggled and fell, he said, "Get up bitch, shut * * * up bitch, get up bitch." Fortunately, two residents in a nearby home overheard the incident, and opened their door allowing Venita to escape from her assailant. One of these residents identified appellant as the assailant in a lineup and at trial. She said his car was a four-door brown car. Also, an investigating police officer testified that a witness reported the car as a four-door brown "possibly a Ford Granada."

The second incident resulted in the rape and murder of fourteen-year-old Tryna Middleton late Friday and in the early morning hours of Saturday, September 21 and 22, 1984. Tryna, a ninth-grade student at Shaw High School, attended a Friday night football game accompanied by her friends and neighbors, Tammy Sims and Bonita Callier.

Tammy had a midnight curfew, so after the game the girls started to walk home to Henderson Avenue, where they all lived. They went from Terrace Road, which runs alongside Shaw High, and southeast up Oakhill Road, where they saw a parked car which they thought looked suspicious because of the way it was parked "between the streets." Neither Tammy nor Bonita could identify the make or color of the suspicious car. The girls retraced their steps down Oakhill to Terrace Road and then they went southwest on Terrace Road and then south onto Lee Road which, like Oakhill, goes up an incline. At the top of the hill, the girls stopped to rest for a few minutes. The time was between 11:20 and 11:30 p.m. From Lee Road the girls turned east onto Glynn Road, which is a lighted, level, tree-lined street of homes situated on large lots.

As the girls proceeded eastward along Glynn on the sidewalk, a car without its lights on came toward them and parked about two houses in front of them. The driver got out of the car and ran past the girls to a spot a couple of houses behind them. The girls had walked past the parked car when they heard footsteps from behind, and the assailant tried to grab all three girls. During the struggle, the assailant said, "[c]ome here bitch" and pulled a knife. Tryna, who was five feet tall and slightly built, could not get free. Tammy and Bonita ran across the street where a homeowner let them in to call the police and their mothers.

The girls were unable to get the license number of the car, but they described the car as "brown," "tan," or "a goldish color," and as a four-door Ford Granada, with a light-colored top. They described the assailant as a young black male, possibly in his early twenties, weighing approximately one hundred sixty pounds and five feet nine inches in height, with a light to medium complexion and a thin mustache.

Approximately two hours later Tryna's body was found in a parking lot adjacent to an abandoned swimming pool in Forest Hills Park in Cleveland. Sperm cells were found in her rectum and vagina. She had been stabbed seven times in the chest and abdomen. Five of the stabbings perforated Tryna's heart and lungs causing almost instantaneous death. Tryna had also incurred an incised wound on her right forearm which the coroner testified was the result of Tryna's efforts to defend herself.

Tammy and Bonita each examined hundreds of photographs, but they were unable to identify any suspect until after the third incident described hereafter.

On December 6, 1984 around 6:30 p.m., eleven-year-old Melinda Grissom had gone to a corner store close to her home on Chamberlain Avenue in Cleveland. The day before it had snowed and the side streets, such as Chamberlain, were still slippery. On her way home Melinda noticed a car following her. The car pulled onto Chamberlain. As Melinda turned the corner from East 74th onto Chamberlain, a man who was "going down in his pocket" as if to get something walked past her and without a word grabbed her neck from behind and started hitting her. She struggled and screamed as she was thrown into the assailant's car. Once inside the car the assailant said, "[b]itch, get your feet off of me."

Melinda's younger sister witnessed the beating and abduction and called to her mother. Mrs. Grissom, who was barefoot, ran outside to the car, and grabbed the locked door of the driver's side of the car in which Melinda had been thrown. Mrs. Grissom hung on to the door while screaming for help and for her daughter to jump from the car. The icy road made the car's wheels spin and slowed its travel, thus allowing Mrs. Grissom to hold on to the door and to pound the window and push the car with her hip so that the car bumped into a parked car. Melinda followed her mother's entreaties, and unlocked the door on the passenger's side and jumped out. The commotion was witnessed by two young men who got the license number of the departing car and gave it to Mrs. Grissom. Melinda was taken to the hospital because her leg had been injured. Within an hour the car, a 1973 Buick, had been traced to its owner, the father of the appellant. The engine was still warm when the police arrived. The appellant, who was at his father's house, admitted that he had been driving the car. He was read his Miranda rights and voluntarily accompanied the police to the hospital, where he was positively identified by Mrs. Grissom and her daughter. The two other witnesses to the incident later picked appellant out of a lineup and at trial.

Police noticed the similarities between the three incidents, which occurred within several miles of each other. All the victims and witnesses of the two September incidents independently picked the appellant out of lineups after Tammy and Bonita first identified his photograph in a photo array. Police investigation revealed and defendant's witnesses confirmed that prior to November 6, 1984, when he wrecked it, appellant drove his girlfriend's car, a goldish-brown Ford Granada with a light top. Tammy identified the car at the police impound lot. Bonita said the car in the impound lot was the same kind and color of car as that used by her assailant.

Tests determined that the sperm found in Tryna came from a person whose blood was type B, which approximately twelve percent of the national population possesses. The appellant has type B blood, while the victim had type O blood. In addition, two hairs were removed from Tryna's hand. One matched her hair and the other one could not be excluded as belonging to the appellant. According to Detective Svekric, appellant voluntarily advised police during questioning that "he couldn't admit to anything, because he didn't want to go to jail for something that he couldn't remember."

A police officer testified that "we asked him * * * if we were wrong in believing that he was responsible for these crimes. His response to that was No." Appellant also admitted that he drove a used, gold 1978 Ford Granada. Finally, another prisoner testified that after appellant was identified in a lineup, appellant referred to Tryna and asserted that the state could not prove anything.

On January 10, 1985, an indictment was issued charging Romell Broom with one count of aggravated murder (R.C. 2903.01) with two specifications for felony murder (R.C. 2929.04[A] ), one count of rape (R.C. 2907.02), five counts of kidnapping (R.C. 2905.01), and one count of felonious assault (R.C. 2903.11). All counts except the last included a prior aggravated felony specification. Appellant entered a plea of not guilty at his arraignment on January 15, 1985.

The trial court granted the defense's motion to sever counts six, seven, and eight of the indictment. These counts concern the incidents of September 18, 1984 and December 6, 1984. Jury trial began on September 16, 1985 on the remaining counts concerning the Tryna Middleton murder and the related crimes. On October 3, 1985, the jury found appellant guilty of aggravated murder...