State v. Byrd

• Decision Date: 12 August 1987
• Docket Number: No. 86-512,86-512
• Citation: 512 N.E.2d 611,32 Ohio St.3d 79
• Parties: The STATE of Ohio, Appellee, v. BYRD, Appellant.
• Court: Ohio Supreme Court

Page 79

32 Ohio St.3d 79

512 N.E.2d 611

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

No. 86-512.

Supreme Court of Ohio.

Aug. 12, 1987.

On April 17, 1983, Monte Tewksbury was working alone as the night clerk at a King Kwik located at 9870 Pippin Road in Hamilton County. At about 11:00 p.m., two men entered the store in masks; one of the men carried a knife with a five-inch blade. The men removed $133.97 from the cash register. In addition, they took personal property from Tewksbury, including a Pulsar watch, a wedding ring, and his wallet which contained cash, credit cards and an automobile registration. Tewksbury was then stabbed in the side, resulting in a puncture wound to his liver that caused massive internal bleeding. The two men ripped the inside telephone out of the wall and fled. At approximately 11:10 p.m., Robert Shepard was driving northbound on Pippin Road. He saw two men run from the King Kwik and enter a large red van parked at the corner of Pippin and Berthbrook. The van then drove off.

Although severely injured, Tewksbury managed to get to the outside phone and call his wife. He told her he had been robbed and hurt, and that she should call the police and an ambulance. At that time, Cecil Conley, a customer, arrived at the King Kwik and saw Tewksbury leaning against a wall beside the phone. Conley helped Tewksbury into the store and laid him on the floor. He then went back to the phone and found Mrs. Tewksbury was still on the line. He told her what he had found, hung up, and called the police. Conley returned to Tewksbury, who told him about the robbery and the items that had been taken from him. Tewksbury told Conley he was dying and that he was having trouble breathing. He also told Conley that he had not resisted the robbery. Mrs. Tewksbury and police officers began to arrive at the scene. Tewksbury was transported to Providence Hospital, where he subsequently died from exsanguination.

A short time later, Jim Henneberry, a clerk at a U-Totem store located at Roundtop and Colerain, was standing at the cash register. A customer, Dennis Nitz, was playing a video game near the front door when two men wearing masks entered the store. Henneberry realized what was occurring and he fled to a room in the rear of the store. One of the men who carried a knife chased Henneberry. He tried to force the door of the room to which Henneberry had fled, but was unsuccessful. Meanwhile, the other man pushed Nitz back when he tried to leave. Nitz was able to dodge him and leave the store. As he left, he noticed that the man had red hair. The two men left the U-Totem with the entire cash register.

Robin Hannon, an occupant of an apartment located near the U-Totem, was disturbed by the noise from a loud muffler. She looked outside and observed two people getting into a large red van parked in the U-Totem lot. The van had a defective tail light.

At about 1:00 a.m. on April 18, two Forest Park police officers were on duty in a marked police cruiser. They were eating their lunch in a K-Mart parking lot when a large red cargo van drove by at a slow rate of speed. The van pulled into the K-Mart lot and its headlights were then turned off. A few minutes later, the van's headlights came back on and the van left the lot traveling east on Waycross. The officers continued to eat their lunch. About four minutes later, the van reappeared, traveling westbound on Waycross, again at a slow rate of speed. The police officers became suspicious and followed the van. While following the van, one of the officers called the license plate number into the dispatcher. It was later learned that the van was registered to Harry's Corner, a carpet business.

As the officers followed the van, it pulled into the parking lot of a United Dairy Farmer store which was closed at the time. The officers pulled behind the van. One of the occupants, later identified as John Brewer, got out of the van and approached the police car. Brewer identified himself as "David Urey" and told the police he had no identification. Brewer first told the police that he had been working but subsequently claimed he had been out drinking and trying to pick up women.

One of the officers asked Brewer to remain in the cruiser while he approached the van. The driver, William Woodall, and the appellant, John Byrd, gave the officer identification which was called in to the dispatcher. Although there were no current warrants for either Byrd or Woodall, the dispatcher reported that both had prior felony convictions.

The officer observed the inside of the van with a flashlight and saw coins on the floor of the van. There were also stocking masks and a knife in a tray on the dashboard. A Shell credit card in the name of Sharon Tewksbury was lying on the floor under the passenger seat. There was also what appeared to be fresh blood on the interior side of the driver's seat. A cash drawer from a cash register was in the back of the van.

Brewer, Woodall and Byrd were arrested and transported to the county patrol station. They were eventually charged with aggravated murder and three counts of aggravated robbery. Byrd was also charged with two death penalty specifications.

A jury trial began on August 1, 1983. Following five days of trial, the jury found John Byrd guilty of aggravated murder and two counts of aggravated robbery. One of the robbery counts had been severed for purposes of trial. The jury also found Byrd guilty of both death penalty specifications. The sentencing hearing was conducted on August 16, 1983. Following presentation of evidence, the jury recommended the death penalty. The trial court affirmed the jury's recommendation. Defendant John Byrd appealed his conviction to the court of appeals, which subsequently affirmed the conviction and death penalty sentence.

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

Arthur M. Ney, Jr., Pros. Atty., Leonard Kirschner, Carl W. Vollman and William E. Breyer, Cincinnati, for appellee.

H. Fred Hoefle and Robert R. Hastings, Jr., Cincinnati, for appellant.

MOYER, Chief Justice.

Our first task in a death penalty case is to determine those specific issues raised by the defendant regarding the lower court proceedings. The defendant, John Byrd, has asserted nineteen propositions of law. Many of these have previously been addressed in prior cases and will be disposed of accordingly.

I

In the first proposition of law, Byrd contends that the use of the same felonies to both elevate the murder to aggravated murder and to elevate the aggravated murder to a capital aggravated murder fails to genuinely narrow the class of murderers eligible for the death penalty. Byrd further contends that the use of an underlying felony as a specification unconstitutionally permits the imposition of death for felony murders upon less proof than in murder cases involving prior calculation and design. Those arguments were previously rejected in State v. Jenkins (1984), 15 Ohio St.3d 164, 177-178, 15 OBR 311, 322-323, 473 N.E.2d 264, 279-280; State v. Buell (1986), 22 Ohio St.3d 124, 136-137, 22 OBR 203, 213-214, 489 N.E.2d 795, 806-807; and State v. Barnes (1986), 25 Ohio St.3d 203, 206-207, 25 OBR 266, 269, 495 N.E.2d 922, 924-925.

Byrd, in his second proposition of law, argues that the trial court, in its written opinion sentencing defendant to death, impermissibly considered the nature and circumstances of the offense as an aggravating factor rather than as a mitigating factor as required by R.C. 2929.04(B). A similar claim was rejected in State v. Steffen (1987), 31 Ohio St.3d 111, at 116-117, 31 OBR 273, at 278, 509 N.E.2d 383, at 389-390. As this court stated in Steffen:

" * * * Obviously, the nature and circumstances of certain offenses will be such that no mitigating feature can be extracted. By its statement on the gruesome and vicious nature of the murder, the trial court herein was merely justifying its conclusion that no mitigating factors can be gleaned from the nature and circumstances of this particular offense." Id. at 117, 31 OBR at 273, 509 N.E.2d at 390.

The trial court in this case also found that there were no mitigating factors in the nature and circumstances of the murder and robbery of Monte Tewksbury. To reach this conclusion, the court was required to review the nature and circumstances of the offense. We do not agree with the defendant's contention that by conducting this required review the court was actually weighing these circumstances against the mitigating factors.

Additionally, defendant contends that the trial court erred in its finding that his young age was not a mitigating factor. The trial court, in its opinion, stated:

"(4) 'The youth of the offender.' The Court finds that the defendant was at the time of his trial [sic ] 19 years of age, the oldest 19 year old this Judge has ever seen. There is no evidence to suggest that his age was a factor that should be taken into account in mitigation of the sentence of death."

This is a permissible finding for the trial court to make. Although R.C. 2929.04(B) lists youth as a factor to be considered, it does not require anyone under a certain age to be absolved of culpability for his crime. As the trial court observed, there was no evidence presented to suggest that Byrd's age was of any relevance in the crime or sentence of death. Accordingly, the second proposition of law is without merit.

In his third proposition of law, Byrd claims that the argument of the prosecutor during the penalty phase, which urged the jury to impose the death sentence to satisfy public demand and to render justice to the victim and his family, is plain error requiring reversal. Defense counsel failed to object to the argument. In his fourth proposition of law, defendant urges this court to find such failure to be a violation of the right to effective counsel. The prosecutor's challenged language is as follows:

"The United States Supreme Court...