State v. Campbell

• Decision Date: 20 April 1994
• Docket Number: No. 91-2137,91-2137
• Citation: 630 N.E.2d 339,69 Ohio St.3d 38
• Parties: The STATE of Ohio, Appellee, v. CAMPBELL, Appellant.
• Court: Ohio Supreme Court

Page 38

69 Ohio St.3d 38

630 N.E.2d 339

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

No. 91-2137.

Supreme Court of Ohio.

Submitted Oct. 13, 1993.

Decided April 20, 1994.

Appellant, Jerome Campbell, convicted of the aggravated murder of Henry Turner, appeals his convictions and death sentence.

Turner lived in an apartment at 1008 York Street, Cincinnati. Campbell had formerly lived in the same apartment building as Turner and had been in Turner's apartment, but had moved out about two months before the murder.

On December 23, 1988, Turner's neighbor, Leon Callins, visited Turner and left at 8:00 p.m. The next morning, Callins found Turner lying dead, a knife sticking through his wrist. Callins called the police.

The police found Turner's apartment in disarray. Dresser drawers were lying on the floor. Items lay jumbled on the bedroom and living room floors. Turner's mattress had been pulled off the bed frame, and his television lay facedown on the floor. Turner's normally locked liquor cabinet was open. According to Callins, Turner kept a neat apartment, and the mess had not been there the night before. Police found a set of knives in an open drawer in Turner's kitchen; the murder weapon was apparently taken from that drawer.

Police also found Campbell's fingerprint and palm print at the crime scene. The fingerprint was on a light bulb found on the floor just outside Turner's apartment. The palm print was on the outside surface of the door leading from the hallway into Turner's kitchen, directly above the lock.

In an autopsy examination, a deputy Hamilton County coroner found two stab wounds in Turner's chest and a "through and through stab wound of the right wrist"; i.e., the knife had been plunged all the way through Turner's wrist. Turner also had a half-inch-deep cut on the chin and a defense wound on his left thumb.

Donna Roberts lived at 1010 York Street. She knew Campbell as "Scar Face" or "Burnt Face," nicknames deriving from the burn scars covering one side of his face. Around 11:00 p.m. on December 23, while walking to a local bar, Roberts saw someone in an alley between 1010 York and 1008 York. She did not see the person's face, but said he or she wore white jogging pants.

About two hours later, Roberts was walking home along York Street, which required her to pass an alley separating 1008 York from a vacant building. Passing the alley, Roberts was startled to see Campbell standing in the alley, just inches away from her. Campbell was wearing dark pants and held what might have been a bottle. Roberts said, "[H]ow you doing?" Campbell said, "Hi."

On December 30, Officer Camden and Specialist Rowland of the Cincinnati police arrested Campbell at his sister's apartment and later interrogated him at the police station. An interrogating police officer stated that Campbell admitted the burglary but denied the murder. Campbell also said that he had never changed a light bulb at 1008 York, except in his own apartment.

After the police took Campbell away, his sister let them search her apartment. (Campbell disputes the voluntariness of her consent.) In a closet, officers found a pair of gym shoes stained with human blood. Under a bed, they found an empty Bacardi rum bottle. A code number on the label matched the number on a Bacardi bottle found in Turner's apartment. Records of the Castleton Beverage Corporation (which makes Bacardi) showed that all bottles with that code had gone in one shipment to Covington, Kentucky.

Campbell's ex-girlfriend, Estella "Niecy" Roe, visited him in the Hamilton County Jail as he awaited trial. During one visit, Campbell admitted to Roe that "he did it" (he later recanted) and asked her to lie for him. Later, Campbell sent Roe a letter postmarked January 23, 1989, setting forth a detailed alibi for Roe to testify to. Unwilling to lie for Campbell, Roe gave the letter to police.

Ronys Clardy and Angelo Roseman, both convicted felons, were in jail at the same time. Both later testified that Campbell admitted to them that he had murdered Turner. Campbell mentioned to both Clardy and Roseman that he had seen a woman, presumably Donna Roberts, outside the apartment house after the murder. Campbell told Roseman he was afraid the woman might be able to identify him.

The jury convicted Campbell of aggravated murder, R.C. 2903.01(B) (felony-murder), a felony-murder specification, R.C. 2929.04(A)(7), and two counts of aggravated burglary, R.C. 2911.11(A)(1) and (A)(3). After a penalty hearing, Campbell was sentenced to death. The court of appeals affirmed.

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

Gloria Eyerly, Ohio Public Defender, Jane P. Perry and Joseph Wilhelm, Asst. Public Defenders, for appellant.

Joseph T. Deters, Hamilton County Pros. Atty., and Christian J. Schaefer, Asst. Pros. Atty., for appellee.

PFEIFER, Justice.

I Waiver and Plain Error

Most of the issues Campbell now seeks to raise were not preserved by objection at trial. "It is a general rule that an appellate court will not consider any error which counsel for a party complaining of the trial court's judgment could have called but did not call to the trial court's attention at a time when such error could have been avoided or corrected by the trial court." State v. Childs 1968), 14 Ohio St.2d 56, 43 O.O.2d 119, 236 N.E.2d 545, paragraph three of the syllabus. Such errors are waived. ¹

Under Crim.R. 52(B), we have power to recognize "[p]lain errors or defects involving substantial rights * * * although they were not brought to the attention of the court." However, this rule may be invoked only in rare cases. Thus, an alleged error "does not constitute a plain error or defect under Crim.R. 52(B) unless, but for the error, the outcome of the trial clearly would have been otherwise." State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, paragraph two of the syllabus. ²

II Presentence Investigation

In his twenty-ninth proposition of law, Campbell contends that the court committed reversible error by ordering a presentence investigation report ("PSI") that the defense did not request. ³

After the guilt phase, defense counsel said: "Your honor, we would like not to have a presentence investigation * * *." The penalty phase was tried without a PSI, resulting in the jury's recommendation of death. After the jury was discharged, the trial judge told counsel: "I would like to order a presentence investigation and report." Campbell did not object, and the PSI was compiled. At the subsequent sentencing hearing, defense counsel stated:

"Your honor, first, if it please the Court, I would indicate that both Mr. Krumbein [defense co-counsel] and I have reviewed the presentence investigation that was ordered by the Court. There are no statements that can be added, no corrections, that I can see that need to be mentioned on the record."

When the judge pronounced sentence, he said that he had "made an independent review of, and considered all of the relevant evidence raised at trial, including the testimony, exhibits, other evidence and arguments of counsel, along with, now, the presentence investigation * * *."

The PSI cited a police officer's opinion "that this was a very brutal offense committed against an elderly, helpless man and that the defendant should receive a maximum sentence." The PSI also related the officer's opinion "that some of the wounds * * * appeared to be torture wounds."

But Campbell never objected to the PSI's compilation or consideration. Under State v. Long, he must show plain error by showing that the sentence would clearly have been otherwise but for the error. Yet, the circumstances indicate that the PSI had little effect on the sentence. While the judge said that he considered the PSI, he cited no specific aspect of it that impressed him. Indeed, he did not deem the PSI worth mentioning in his subsequent written opinion.

Moreover, though the judge considered the PSI, we see no reason to presume that he gave weight, or even credence, to everything in it. Specifically, we see no evidence that the judge's sentencing decision was affected by the officer's opinion regarding "torture wounds." The officer was not qualified to render such an opinion, and we think it likely that this experienced trial judge understood that. And, while Campbell characterizes the officer's opinion as "inflammatory," we recognize that judges are not easily swayed by irrelevant emotional responses.

Campbell's criminal record was also in the PSI. However, the mitigating factor of R.C. 2929.04(B)(5), lack of a significant criminal record, was absent in this case with or without the PSI, since Campbell did not attempt to prove that mitigating factor. See, e.g., State v. Waddy (1992), 63 Ohio St.3d 424, 449, 588 N.E.2d 819, 838.

Finally, we note that both the jury and the court of appeals unanimously found beyond a reasonable doubt that the aggravating circumstance outweighed the mitigating factors, even though neither group ever saw the PSI. ⁴ That is significant, for Campbell must show that the trial judge clearly would have sentenced him to life but for the PSI. We can hardly be certain of that, since twelve jurors and three appellate judges found that Campbell deserved a death sentence without seeing the PSI.

"Notice of plain error * * * is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." Long, supra, paragraph three of the syllabus. It is far from clear that justice has been miscarried here, and so we cannot find plain error. Accordingly, we hold the PSI issue waived and overrule Campbell's twenty-ninth proposition.

In his twenty-first proposition of law, Campbell recasts the PSI issue in Sixth Amendment terms. Campbell claims he did not receive the effective assistance of counsel, because counsel did not object when the trial court ordered the PSI.

A defendant who claims...