State v. Courtney
| Decision Date | 31 July 1985 |
| Docket Number | No. CA84-09-066,CA84-09-066 |
| Parties | , 25 O.B.R. 41 The STATE of Ohio, Appellee, v. COURTNEY, Appellant. * |
| Court | Ohio Court of Appeals |
Syllabus by the Court
1. The language of R.C. 2929.71(A)(2), which states that an additional penalty of three years of actual incarceration shall be imposed "consecutively with, and prior to * * * " the sentence imposed for the crime committed, is not void for vagueness or impossible to apply.
2. An expert witness' testimony that a gun belonging to the defendant could have fired the fatal bullet was admissible, as the opinion was based on accepted scientific identification procedures and was circumstantially relevant for the purpose of proving whether the defendant's gun was involved in the shooting.
George E. Pattison, Pros. Atty., Gregory Chapman, Batavia, and D. Vincent Farris, for appellee.
Edward J. Collins and Jim Rimedio, Cincinnati, for appellant.
This cause came on to be heard upon an appeal from the Court of Common Pleas of Clermont County.
Defendant-appellant, Katherine Rhea Courtney, was convicted of aggravated murder with a firearms specification as a result of the August 25, 1983 shooting death of Robert Michael Dean. The evidence presented at trial tended to show that appellant and the deceased were co-workers at the General Motors Assembly Plant in Norwood, Ohio, and that they had maintained a dating relationship for approximately seven months prior to the shooting. During this seven-month period, Dean had apparently told appellant that he was residing with a niece named Marilynn when he was in fact residing with his former wife, Peggy Dean. Dean and his former wife had obtained a dissolution of marriage during 1982 but continued to live together until Dean's death.
On the day of the shooting, Dean was suffering from a severe headache and appellant accompanied him on a visit to a doctor prior to reporting to work at General Motors at 3:56 p.m. Dean did not go to work due to the headache. Although her shift ran from 4:18 p.m. on August 25, 1983 until 12:48 a.m. the next day, appellant left work at 8:36 p.m. to check on Dean. Upon her arrival at Dean's Goshen Township, Clermont County, Ohio, residence, appellant was greeted by a dark-haired woman whom she assumed to be Dean's niece, Marilynn. Upon inquiry, however, the woman responded: "No, I'm Peggy Dean." Dean then came out of the house and he and appellant conversed for a short period of time, after which appellant drove to her home, located minutes away in Loveland, Ohio. Peggy Dean testified that when her former husband re-entered the house following this conversation he appeared visibly upset.
After arriving home, appellant telephoned Pansy Cowen, Dean's adult daughter, and told her about the encounter with Peggy Dean. Cowen testified that appellant seemed very upset and that appellant demanded an explanation from her as to what was going on between Dean and his former wife. Cowen stated that she advised appellant to talk things over with Dean and terminated the conversation.
Appellant also discussed the situation with her own daughter, Micha Porter, and Micha's fiancee, Jamie Ertle, who were both present at her home upon or shortly after her arrival. At approximately 10:30 p.m., appellant asked Ertle to drive her over to Dean's house so that she could talk to him. Ertle agreed, and he, Porter and appellant subsequently drove over to the Dean residence in appellant's automobile. Ertle was at the wheel; appellant was in the front passenger's seat and Porter was sitting on the console between them.
As Ertle pulled into the Dean driveway, appellant requested that he go to the door and ask for Dean. Ertle exited the vehicle and began to walk toward the front door of the residence, but Dean was on his way out of the door as Ertle approached it. Ertle then returned to the car and appellant exited the vehicle. Appellant and Dean began talking a few feet in front of the vehicle with Dean facing the vehicle and appellant facing Dean with her back toward the car.
Ertle and Porter, who remained inside the vehicle during the subsequent five-minute conversation between Dean and appellant, testified that they could not discern what the two were saying to each other, but remember hearing a "click" which both described as the sound of a gun being cocked. Approximately thirty seconds later, a shot was fired and Dean began walking toward the house holding his chest. At that time he had a .22 caliber pistol in his left hand which was later determined to belong to appellant. Appellant was following closely behind Dean as he walked and appeared to be attempting to support him with her hands and arms. Dean staggered toward the front door of the house and fell inside the front room of the residence. He then fell back outside the house and died on the front porch from loss of blood.
As Dean was walking toward the house after being shot, Ertle and Porter exited the vehicle in which they had been seated and approached Dean and appellant. Ertle found the .22 caliber gun just inside the doorstep of the residence and picked it up and threw it toward a neighbor's yard. Ertle also noticed a .38 caliber pistol sticking out of Dean's back pocket. He removed the gun from the pocket and threw it in another direction. Porter went to her mother, who was kneeling over Dean's body calling his name. Peggy Dean, who had come to the front door upon hearing the shot, telephoned the Batavia Police Department and requested a life squad.
Ertle and Porter, unable to persuade appellant to leave Dean's side, then left the scene in appellant's car and drove back to appellant's residence in Loveland. Shortly afterward, appellant left the scene on foot; she was apprehended by police about one-half mile from the Dean residence.
Following her conviction, appellant was sentenced to a term of life imprisonment with no possibility of parole for at least twenty years for the aggravated murder count against her and to a term of actual imprisonment of three years, to be served consecutively with, and prior to the sentence for aggravated murder, for the firearms specification. Appellant thereafter timely filed notice of the instant appeal, and now presents the following four assignments of error for our consideration:
In her first assignment of error, appellant contends that the trial judge should have stricken testimony by Ohio Bureau of Criminal Investigation firearms expert Ronald Dye because such testimony was based on possibility as opposed to probability. We do not agree.
The disputed testimony concerns whether the bullet that killed Dean was fired from the .22 caliber pistol found on the scene and identified as belonging to appellant. Dye testified that the lands and grooves found in the bullet that caused Dean's death matched the land and groove characteristics of the .22 caliber gun. He further stated that the bullet and the gun both exhibited a "right twist" characteristic, which is the direction of spin imparted upon the bullet by the lands and grooves inside the gun barrel. However, Dye also advised the jury that he could not find enough other matching characteristics to positively match the bullet back to the gun. Dye therefore concluded that while it was not possible, based on the tests performed, to positively say whether or not the particular bullet was fired from the particular gun, it was possible to conclude, based upon the corresponding land and groove widths and the direction of the "twist," that the bullet could have come from appellant's gun.
As a general rule, Ohio courts have required that an expert testifying at trial express opinions based on nothing less than "reasonable certainty" or "probability." See State v. Holt (1969), 17 Ohio St.2d 81, 246 N.E.2d 365 . Appellant argues that Dye's testimony as related above should have been disallowed below because Dye was unable to state with reasonable certainty that the death bullet was fired by appellant's gun. In support of this position, appellant cites Holt, supra. In Holt, the Ohio Supreme Court found that opinion testimony by an expert witness who had performed a "neutron activation analysis" identification/comparison procedure on two pubic hair samples was inadmissible because the expert could only state that the samples were "similar and likely to be from the same source." The court found that the word "likely" was not equivalent to the words "reasonably certain" or "probable" and that the testimony should therefore have been stricken.
The testimony at issue in the instant appeal, however, is different from the neutron activation analysis testimony in Holt, supra, because while Dye could not positively match the bullet that killed Dean back to appellant's gun he could, based on his comparison of the lands and grooves, say with reasonable scientific certainty that the bullet could have been fired from appellant's gun. This opinion was based on accepted scientific identification procedures and was certainly circumstantially relevant for the purpose of proving whether appellant's gun was involved with Dean's death. Of course, Dye's testimony alone would not...
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