State v. Coleman

• Decision Date: 20 September 1989
• Docket Number: No. 87-2074,87-2074
• Citation: 45 Ohio St.3d 298,544 N.E.2d 622
• Parties: The STATE of Ohio, Appellee, v. COLEMAN, Appellant.
• Court: Ohio Supreme Court

Page 298

45 Ohio St.3d 298

544 N.E.2d 622

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

No. 87-2074.

Supreme Court of Ohio.

Submitted April 25, 1989.

Decided Sept. 20, 1989.

Syllabus by the Court

1. Ohio's death penalty statutes impose no specific time requirements, leaving the matter of when to proceed with the penalty phase of a capital trial to the sound discretion of the trial court.

2. A prosecuting attorney should avoid being a witness in a criminal prosecution, but where it is a complex proceeding and substitution of counsel is impractical, and where the attorney so testifying is not engaged in the active trial of the cause and it is the only testimony available, such testimony is admissible and not in violation of DR 5-102.

On July 7, 1984, Alton Coleman (appellant), and Debra D. Brown approached the home of the Reverend and Mrs. Millard Gay of Dayton, Ohio. After conversing with Mr. Gay, they stayed at the Gays' home from July 7 through July 9, 1984. Appellant and Brown accompanied the Gays to religious services in Lockwood, Ohio, on July 9, 1984. The next day, the Gays drove appellant and Brown to downtown Cincinnati and dropped them off.

On July 11, 1984 at approximately 10:00 a.m., Tonnie Storey, age fifteen, left her home in Cincinnati wearing rusty brown cutoff shorts, a beige sleeveless blouse with yellow rings, blue tassel shoes and a Michael Jackson button. She was next seen at Bloom Junior High School at approximately 11:45 a.m. by a teacher.

Later that same day, between 5:00 and 6:00 p.m., a classmate saw Tonnie on the corner of May and Morgan Streets in Cincinnati in the company of a man and a woman. The classmate identified the man as Coleman. When Tonnie had not returned home by 4:30 p.m. that day, her mother called the police and reported her missing.

On July 19, 1984, a body was discovered in an abandoned building on May Street by a real estate agent. A Michael Jackson button and a pair of brown shorts with keys in the pocket were discovered in the area where the body was found. The keys identified by decedent's father belonged to the Storey residence. The body was badly decomposed and identification was made through fingerprints. The body was identified as that of Tonnie Storey. The cause of death of Tonnie was homicidal asphyxia.

Appellant and Brown were jointly indicted for the murder of Tonnie on October 10, 1984, in a three-count indictment containing specifications. The first specification charged pursuant to R.C. 2929.04(A)(5) was that the aggravated murder was part of a course of conduct involving the purposeful killing of or attempt to kill two or more persons. The death-penalty specification was dismissed prior to trial. The third specification charged pursuant to R.C. 2929.04(A)(3) was that the offense was committed for the purpose of escaping detection, apprehension, trial, or punishment for another offense.

Appellant was tried separately from co-indictee Brown. The jury found appellant guilty of aggravated murder and guilty of specification No. 1. The mitigation hearing was held one day after the guilt phase was completed, and the jury recommended the penalty of death.

On June 24, 1985, the trial court accepted the jury's recommendation and sentenced appellant to death. Appellant appealed to the court of appeals which affirmed the judgment of the trial court.

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

Arthur M. Ney, Jr., Pros. Atty. and William E. Breyer, Cincinnati, for appellee.

Michael H. Siegler and Hal R. Arenstein, Cincinnati, for appellant.

ALICE ROBIE RESNICK, Justice.

Appellant has raised twelve propositions of law. Each has been reviewed and for the reasons which follow we find them without merit and uphold the appellant's convictions and death sentence.

I

Appellant asserts in his first proposition of law that he was denied his constitutional right to a fair capital trial due to the introduction of evidence of unadjudicated crimes from other jurisdictions.

During the trial the prosecution introduced evidence of approximately ten other criminal acts. The purpose of presenting this evidence was twofold. First, the state's burden of proof on the first death-penalty specification was to show a "course of conduct" on the part of the defendant involving the killing or attempted killing of two or more persons. Second, the evidence was introduced pursuant to R.C. 2945.59 to prove identity by showing that the appellant had used a similar "scheme, plan, or system" in committing other acts.

In reviewing the testimony which was presented we find that the majority of the victims were young black females who were killed by ligature strangulation; the bodies were generally left in abandoned buildings or areas where they would not be found for some time; and appellant and Brown normally fled in a stolen vehicle. Courts have routinely admitted such evidence to prove relevant issues, such as identity, intent, and lack of mistake. State v. Flonnory (1972), 31 Ohio St.2d 124, 60 O.O.2d 95, 285 N.E.2d 726; State v. Moorehead (1970), 24 Ohio St.2d 166, 53 O.O.2d 379, 265 N.E.2d 551.

Additionally, we held in the first paragraph of the syllabus of State v. Broom (1988), 40 Ohio St.3d 277, 533 N.E.2d 682, that "[b]ecause 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.3d 124, 126, 60 O.O.2d 95, 96-97, 285 N.E.2d 726, 729, followed.)" It is irrelevant that the other acts occurred outside the jurisdiction.

In the case before us the "other acts" were almost identical to the Tonnie Storey killing. The similarities of the other acts tend to show appellant's intent or motive to kill and thus the evidence was properly admitted under R.C. 2945.59.

Further, there is no merit to appellant's assertion that the probative value of the other acts evidence was outweighed by the danger of unfair prejudice. The probative value of the other acts evidence was considerable. A review of the five other murders alleged to have been committed by appellant and the thefts of automobiles used to flee the various cities reveals a unique, identifiable plan of criminal activity. ¹ Additionally we find no error in the admission of the photographs concerning the other acts. See this court's decision in State v. Morales (1987), 32 Ohio St.3d 252, 513 N.E.2d 267.

Lastly, no merit is found in appellant's assertion that the other acts evidence violated his rights under the Compulsory Process Clause since appellant has failed to demonstrate any prejudice by the admission of such evidence.

II

In his second proposition of law appellant contends that he was denied a fair trial due to erroneous jury instruction as to aiding and abetting, and due to prosecutorial misconduct. We find that these errors were not properly preserved for appellate review. There is no record of an objection at a time when corrective action, if necessary, could have been taken. State v. Williams (1977), 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364.

However, since this is a capital case we have reviewed the jury instructions and find not only that there was a correct statement of the law but also that the trial court additionally instructed the jury it could not convict the defendant of aggravated murder unless it found that he specifically intended that Tonnie die. ²

Thus, when considering the entire charge, we find nothing improper in the instruction on aiding and abetting.

Appellant next asserts that the prosecutor's comment on the role of the jury in a death penalty case was improper in view of Caldwell v. Mississippi (1985), 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231. We distinguished Caldwell in State v. Buell (1986), 22 Ohio St.3d 124, 22 OBR 203, 489 N.E.2d 795, and therefore find that there was nothing improper in the comments of the prosecution.

Lastly, appellant contends that the prosecution's repeated reference to appellant's "unsworn" statement during the penalty phase was prejudicial. In this case the prosecutor simply argued as to the fact that the statement was unsworn. Hence it fell within the limitations set forth in State v. DePew (1988), 38 Ohio St.3d 275, 528 N.E.2d 542, at paragraph two of the syllabus.

Accordingly, appellant's second proposition of law is found meritless.

III

Appellant in his third proposition of law asserts that he was denied a fair trial due to the fact that the Prosecuting Attorney of Hamilton County was permitted to testify during the guilt phase of the trial. The prosecuting attorney was not engaged as active counsel in the trial. In fact, he personally took no part in the trial of this case. He was called as a witness to identify certain handwritten motions prepared by appellant.

Appellant asserts that the prosecutor's testimony was highly irregular and unethical. While this is a situation which should be avoided, the testimony may be "permitted in extraordinary circumstances and for compelling reasons, usually where the evidence is not otherwise available." United States v. Johnston (C.A.7, 1982), 690 F.2d 638, 644. Such circumstances existed in this case.

At the murder scene, certain words were printed in uppercase letters on a wall above the body....