State v. Brown

Decision Date31 August 1988
Docket NumberNo. 87-891,87-891
Citation38 Ohio St.3d 305,528 N.E.2d 523
PartiesThe STATE of Ohio, Appellee, v. BROWN, Appellant.
CourtOhio Supreme Court

Syllabus by the Court

1. The number of jurors on a grand jury does not affect a substantive right. Accordingly, Crim.R. 6(A) controls the issue of how many grand jurors are needed to issue an indictment. R.C. 2939.02 and 2939.20 are superseded insofar as they conflict with this rule. (Wells v. Maxwell [1963], 174 Ohio St. 198, 22 O.O.2d 147, 188 N.E.2d 160, approved and followed.)

2. The determination of whether a voir dire in a capital case should be conducted in sequestration is a matter of discretion within the province of the trial court. (State v. Mapes [1985], 19 Ohio St.3d 108, 19 OBR 318, 484 N.E.2d 140, approved and followed.)

3. A denial of a motion in limine does not preserve error for review. A proper objection must be raised at trial to preserve error.

4. In reviewing a claim that a jury verdict was against the weight of the evidence, or that the evidence was insufficient, a reviewing court's duty is to review the record to determine whether there was sufficient evidence for the jury to find defendant guilty beyond a reasonable doubt.

On July 11, 1984, at approximately 10:00 a.m., fifteen-year-old Tonnie Storey left her home in Cincinnati, Ohio, to attend summer school. Tonnie was wearing a beige blouse, brown shorts, a watch, a ring, blue shoes with tassels, and a Michael Jackson button when she left. Tonnie did not return home. She was last seen with Alton Coleman and a woman matching Debra Brown's description.

On July 19, 1984, a realtor was preparing to show an abandoned building at 2826/2828 May Street in Cincinnati. Inside, he found a body "vibrating" with maggots. Scrawled above the body on the wall were the words "I hate niggers death." The realtor notified the police.

The body was identified as that of Tonnie Storey. Her brown shorts were found near a shoeprint. The shoeprint matched a print found at a different murder scene, and was later found to match shoes worn by Coleman. Also found were the tassels from Tonnie's shoes, a Michael Jackson button with Brown's fingerprint on it, and pieces of an envelope with writing on it. Near Tonnie's body was a bracelet belonging to Raymond Temple. Tonnie's beige blouse, watch, ring, and shoes were never found.

Debra Brown (hereinafter "appellant") and Coleman were jointly indicted for the murder of Tonnie Storey on October 10, 1984. Appellant was indicted on two counts of aggravated murder. Count One charged her with killing Tonnie purposely and with prior calculation and design. Count Two charged that the killing took place while appellant was committing, attempting, or fleeing after committing or attempting aggravated robbery.

Both counts contained specifications alleging (1) the killing was part of a course of conduct involving the purposeful killing or attempt to kill two or more persons; and (2) the murder was committed for the purpose of escaping detection, apprehension, trial, or punishment for aggravated robbery. Specification Four to Count Two alleged a felony-murder and that appellant was either the principal offender or acted with prior calculation and design. Count Three charged her with aggravated robbery.

At trial, the state introduced evidence that appellant murdered or participated in the murders of Tonnie Storey, Tamika Turks, Donna Williams, Virginia Temple, Rachelle Temple, and Marlene Walters. The state also contended that appellant participated in assaults on or attempts to kill Annie Hillard, Palmer Jones, Frank Duvendack, Ralph Welch and Harry Walters.

Appellant was convicted of all charges and specifications on June 7, 1985. On June 10, 1985, the mitigation hearing was held. That same day, the jury recommended the death penalty. The trial court passed sentence of death on July 11, 1985. The court of appeals affirmed the convictions and sentence.

The cause is now before this court upon an appeal as a matter of right.

Arthur M. Ney, Jr., Pros. Atty., Christian J. Schaefer, Claude N. Crowe and Melba D. Marsh, Cincinnati, for appellee.

Roxann H. Dieffenbach and Candace C. Greenham, Cincinnati, for appellant.

WRIGHT, Justice.

Appellant appeals her aggravated murder convictions and death sentence. For the reasons set forth below, we affirm the convictions and find the death penalty appropriate.

I

The first of appellant's contentions that we address is that her constitutional and statutory rights were violated when the state prosecuted her for aggravated murder with a defective indictment. The indictment is alleged to be defective for two reasons: (1) the indictment was issued by a grand jury composed of nine people rather than the fifteen required by R.C. 2939.02; and (2) the indictment was secured without adequate evidence.

Crim.R. 6(A) states that a grand jury shall consist of nine members. 1 R.C. 2939.02 states that grand juries shall consist of fifteen people. R.C. 2939.20 requires twelve of fifteen people to agree before an indictment is issued. 2 Thus, a conflict exists between the rule and the statutes.

According to Section 5(B), Article IV, Ohio Constitution, where a conflict exists between a rule and statute, the rule prevails if the right involved is procedural. If the conflict involves a substantive right, the statute controls.

In Wells v. Maxwell (1963), 174 Ohio St. 198, 200, 22 O.O.2d 147, 148, 188 N.E.2d 160, 161, we held:

" * * * The manner by which an accused is charged with a crime, whether by indictment returned by a grand jury or by information filed by the prosecuting attorney, is strictly a matter of procedure, and a change in such a procedure does not deprive an accused of any substantial right or protection and thus does not constitute a violation of the ex post facto provisions of the Constitution."

Ohio appellate courts have interpreted Wells and held the number of persons on the grand jury is a procedural question rather than substantive. State v. Wilson (1978), 57 Ohio App.2d 11, 11 O.O.3d 8, 384 N.E.2d 1300; State v. Juergens (1977), 55 Ohio App.2d 104, 9 O.O.3d 262, 379 N.E.2d 602.

In our view, the number of jurors on a grand jury does not affect a substantive right. Accordingly, Crim.R. 6(A) controls the issue of how many grand jurors are needed to issue an indictment. R.C. 2939.02 and 2939.20 are superseded insofar as they conflict with this rule.

The record indicates nine people were on Brown's grand jury. The size of the jury conformed to Crim.R. 6(A). Therefore, we hold the indictment by the grand jury was not defective in this case.

Appellant also contends the indictment was secured with inadequate evidence. In support of this claim, Brown argues there were no witnesses subpoenaed from the date Storey's body was found to the date the indictment was issued. Appellant suggests her indictment was based on mere hearsay and argues that hearsay should not be admissible in a grand jury proceeding.

This contention has no merit. The fact no one was subpoenaed does not mean no one testified before the grand jury. Moreover, we have previously held that the Rules of Evidence do not apply to grand jury proceedings. See Turk v. State (1836), 7 Ohio 240, 242. See, also, Evid.R. 101(C)(2). Hearsay is therefore admissible in a grand jury proceeding.

Finally, Brown argues in effect that the trial court should have granted her motion to inspect part of the record and the grand jury testimony. To view such testimony, the defendant must show a particularized need. State v. CECOS Internatl., Inc. (1988), 38 Ohio St.3d 120, 526 N.E.2d 807; State v. Greer (1981), 66 Ohio St.2d 139, 20 O.O.3d 157, 420 N.E.2d 982, paragraph two of the syllabus. Appellant contends the transcript would indicate whether the indictment was properly issued, and therefore she has a particularized need.

Before we may disturb the trial court's ruling denying access to the grand jury testimony, we must find an abuse of discretion. "Abuse of discretion" has been defined to mean an attitude by the trial court that is unreasonable, arbitrary, or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 16 O.O.3d 169, 404 N.E.2d 144. Brown provides no indication as to how the court abused its discretion. Our independent review of the record does not reveal any attitude by the trial court that was unreasonable, arbitrary, or unconscionable. Therefore, we reject appellant's contentions.

II

Appellant next claims the trial court erred by not granting her motion to join her trial with that of co-defendant Alton Coleman. Brown asserts that, pursuant to Crim.R. 14, joint trials are permissible upon a showing of good cause. Good cause, according to appellant, was shown by defendants' waiver of their rights to separate trials and their belief that the evidence would be better presented in a joint trial. Appellant also argued that her trial strategy would be enhanced by a joint trial.

Crim.R. 14 provides, in pertinent part:

"When two or more persons are jointly indicted for a capital offense, each of such persons shall be tried separately, unless the court orders the defendants to be tried jointly, upon application by the prosecuting attorney or one or more of the defendants, and for good cause shown."

The rule clearly indicates that jointly indicted defendants shall be tried separately unless one or more of the defendants can show good cause. "Good cause" is not defined in the rule. Therefore, the ordinary and natural definition of the phrase applies. Black's Law Dictionary (5 Ed.1979) defines "good cause" as "[s]ubstantial reason, one that affords legal excuse." Id. at 622. The determination of what constitutes good cause can be made only on a case-by-case basis.

The question before us, therefore, is whether waiver of the right to separate trials and alleged enhancement of trial strategy constitute a substantial reason to join trials. The...

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