State v. Combs

Decision Date18 December 1991
Docket NumberNo. 90-1868,90-1868
Citation62 Ohio St.3d 278,581 N.E.2d 1071
PartiesThe STATE of Ohio, Appellee, v. COMBS, Appellant.
CourtOhio Supreme Court

Moments later, at an exit ramp near West Eighth Street and Linn Street, Robert Scalf saw a "brown Nova" blocking a gray Cougar. The "Nova" pulled forward and let the Cougar escape, and the "Nova" then drove backwards down an exit ramp, turned completely around, and chased the Cougar.

Shortly thereafter, at Eighth and Linn, John Hughes saw a Cougar and a brown car, tires screeching, speed into the Holiday Park Tower parking lot. The brown car blocked the Cougar and later pulled alongside. The driver of the Cougar, a woman, was hollering, waving her hands, and honking the horn. Hughes saw a man get out of the brown car and hit the Cougar's passenger window three or four times with a shotgun, knocking out the glass. This man then put the shotgun up to his shoulder and fired twice into the Cougar. Thereafter, the man got back into his car, and Hughes saw a deputy sheriff, shouting, run up behind the Cougar.

Deputy Sheriff James Neil jogged over to where two cars had raced into the Holiday Park Tower parking lot. When he arrived, he saw Ronald Dean Combs, defendant-appellant, holding a long gun, fire two shots through the passenger window of a Cougar. Combs then returned to his red car and got in, but left the door open. Neil shouted five or six times to Combs to "freeze, halt, stop." Combs responded, "You are going to have to shoot me or you are going to have to kill me."

Combs made "an aggressive move," and Neil shot at Combs twice. Combs, still holding the shotgun, got out of his car and faced Neil. Neil shot at Combs four more times, then retreated to reload.

Before Neil returned, Cincinnati police officer Douglas Ventre arrived and found Combs, wounded, sitting on the ground, but holding a shotgun. He ordered Combs to drop the shotgun, but Combs raised the shotgun towards Ventre, then "ran out of gas" and lowered the shotgun into his lap. Ventre ran to Combs, grabbed the shotgun, pulled it away, and asked Combs what happened. Combs replied, "the guy shot me." Later, as Combs was placed into an ambulance, Ventre again asked what happened. Combs "told me to talk to his lawyer."

Medical personnel and Ventre found three live shotgun shells taped to Combs' body. When asked his name, Combs replied "Doc Holiday." Combs was abusive, nasty, and uncooperative with responding medical personnel, but he did not appear to be under the influence of alcohol. His eyes looked clear, pupils were reactive, and his speech appeared normal.

Combs underwent extensive treatment for his gunshot wounds. His right arm was amputated above the elbow, his left was partly paralyzed. Early the next morning, after an operation, Combs asked a nurse what had happened to "the two bitches that I shot." When Leigh Ann Wright, a recovery room nurse, told Combs, "they're dead," Combs responded, "serves the Goddamned whores right." Peggy had been Combs' girlfriend.

Police found Joan and Peggy dead from shotgun wounds to the right side of their heads. At trial, Combs did not contest that he fired the two fatal shotgun blasts.

To support prior calculation and design, the prosecutor presented evidence of Combs' efforts to obtain a shotgun on the day of the murders. Combs asked to borrow a shotgun from Anthony Liming, his fifteen-year-old cousin. Tony had none, so they both drove to Mt. Orab, over forty miles away, and Combs asked Tim Liming, Tony's uncle, to lend him a shotgun. Tim refused, and ultimately Combs used a shotgun stolen from the house of Richard Liming, Tony's father. When Combs got the shotgun, at about 3:00 p.m., he drove at high speed back to Cincinnati.

At trial, Combs argued he was too intoxicated from alcohol, marijuana, and pills to formulate the intention to kill Joan and Peggy or to plan and calculate their deaths.

Michael Eversoll, Combs' cousin, testified that on July 13, Combs started drinking heavily, smoking marijuana, and taking pills, and continued to do so through noon, July 15. Two witnesses, Tony and Tim Liming, saw Combs drink, smoke marijuana, or take pills on the afternoon of July 15. Tim Liming described Combs' eyes as glassy and his face as waxy. Combs' sister, who saw Combs around noon on July 15, and a neighbor, who saw Combs between 1:00 and 2:00 p.m., thought he was definitely under the influence of drugs and alcohol.

Dr. Roger Fisher, a clinical psychologist, found that Combs had a history of severe drug addiction. Dr. Fisher believed that Combs' judgment was substantially impaired and that he was under the influence of drugs and alcohol when he killed Joan and Peggy. However, Fisher agreed that Combs "was acting intentionally and purposefully."

A jury convicted Combs of two counts of aggravated murder. Each count contained a death penalty specification alleging a course of conduct to kill two persons, along with a gun specification. Following the jury's recommendation, the trial judge sentenced Combs to death on each murder count. Combs was also sentenced to two three-year terms on the firearm specifications. The court of appeals affirmed the convictions and death sentences.

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

Arthur M. Ney, Jr., Pros. Atty. and Christian J. Schaefer, Cincinnati, for appellee.

H. Fred Hoefle and Chuck R. Stidham, Cincinnati, for appellant.

MOYER, Chief Justice.

We have reviewed Combs' fifteen propositions of law, independently assessed the evidence relating to the death sentences, balanced the aggravating circumstance in each count against the mitigating factors, and compared the sentence to those imposed in similar cases. As a result, we affirm the convictions and two death sentences.

I Pretrial Statement about Lawyer

In his first proposition of law, Combs argues that the admission of his statement to Ventre, "talk to * * * [my] lawyer," was constitutional error. When that statement was admitted, the trial court instructed the jury that the defendant had a right not to speak to the police and that it not draw any inference against Combs because he exercised his rights. However, the judge also advised the jury, "You may consider this evidence, however, as it relates to the elements of purpose and prior calculation and design but what weight you give to this testimony depends upon your findings and the weight that you attribute to this testimony * * *."

Combs argues egregious error because the court allowed the jury to use his exercise of a constitutional right to consult an attorney to support proof of essential elements of the crimes charged against him.

Since Combs objected neither to the evidence nor to the trial judge's sua sponte instruction, the issue must be analyzed on the basis of plain error. State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804; State v. Wade (1978), 53 Ohio St.2d 182, 7 O.O.3d 362, 373 N.E.2d 1244.

Courts disapprove of penalties imposed for exercising the right to remain silent and to consult an attorney. Griffin v. California (1965), 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, prohibits comments by prosecutors seeking to premise guilt findings on a defendant's failure to testify. Doyle v. Ohio (1976), 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91, condemned the use of post-arrest silence to impeach a defendant's trial testimony. Wainwright v. Greenfield (1986), 474 U.S. 284, 106 S.Ct. 634, 88 L.Ed.2d 623, and State v. Rogers (1987), 32 Ohio St.3d 70, 512 N.E.2d 581, reversed convictions when defendants' pretrial exercise of rights of silence and to consult attorneys was used to refute insanity pleas.

The state argues that this principle only applies when Miranda warnings promise no adverse consequences from silence, and here no Miranda warnings were given. See Jenkins v. Anderson (1980), 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86; Fletcher v. Weir (1982), 455 U.S. 603, 606, 102 S.Ct. 1309, 1311-1312, 71 L.Ed.2d 490, 494.

However, at the point when Combs was placed in the ambulance, we find that Combs was in custody and had a right to remain silent, consult a lawyer, and receive a Miranda warning. When he arrived at the scene, Officer Ventre personally took the shotgun from Combs; there were two women dead from shotgun blasts in the adjacent car; and Ventre had been at the scene for some ten to fifteen minutes. Ventre's questioning, without a Miranda warning, violated those rights. Using Combs' comment, "talk to * * * [my] lawyer," in evidence at trial also violated his rights as viewed by Griffin v. California, supra.

Additionally, the "talk to my lawyer" evidence does not relate to or tend to prove prior calculation and design or purposefulness. Combs' comment simply meant that he was exercising his right to counsel and nothing more. Even if this remark was initially admissible, Evid.R. 401 and 403 would otherwise invite exclusion from evidence. No justification is apparent for the instruction that the evidence related to either purposefulness or prior calculation and design. Thus, we conclude the trial court erred in allowing this remark into evidence and in instructing the jury to consider the remark in relation to purposefulness and prior calculation and design.

Nonetheless, neither the evidence nor the instruction constituted plain error. The evidence did not cause a miscarriage of justice, and neither the evidence nor the instruction produced a different result in the case. Since Combs' remark does not tend to prove either prior calculation and design or purposefulness, the jury could not have relied upon it to make those findings.

Other compelling evidence established purposefulness and prior calculation and design. Combs spent a considerable part of the afternoon of the murders searching for a shotgun. He asked two people for a shotgun, and eventually drove over eighty miles before returning to...

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