State v. Davel v. Chinn
| Decision Date | 27 December 1991 |
| Docket Number | 91-LW-4286,11835 |
| Parties | STATE OF OHIO, Plaintiff-Appellee v. DAVEL V. CHINN, Defendant-Appellant CASE |
| Court | Ohio Court of Appeals |
Lee C Falke, Prosecuting Attorney, Carley J. Ingram, Asst Prosecuting Attorney, Appellate Division, Montgomery Prosecutor's Office, 41 N. Perry Street, Suite 315 - Appellate Division, Dayton, Ohio 45402, Attorney for Plaintiff-Appellee.
Randall M. Dana, Public Defender, Kathleen A. McGarry, Linda E Prucha, Cynthia A. Yost, Ohio Public Defender Commission, 8 East Long Street - 11th Floor, Columbus, Ohio 43266-0587, Attorneys for Defendant-Appellant.
Defendant Davel V. Chinn was convicted of Aggravated Murder, in violation of R.C. 2903.01(B), for purposely causing the death of Brian Jones in the course of a kidnapping and robbery. Chinn was sentenced to death, pursuant to R.C. 2929. 02, et seq. He now appeals his conviction and sentence, asserting twenty-seven assignments of error. We shall overrule all but two assignments of error.
Assignment of Error IX is sustained because the trial judge in performing his independent review for purposes of sentencing pursuant to R.C. 2929.03 (D) (3) erred; (1) by failing to state his findings specifically as required by R.C. 2929.03(F), (2) by failing to,consider relevant mitigating factors, (3) by failing to merge aggravating circumstances, and (4) by weighing both culpability factors of R.C. 2929.04(A) (7), "principal offender" and "prior calculation and design", contrary to the rule of State v. Penix (1987), 32 Ohio St. 3d 369. Chinn's sentence of death will be vacated and the case remanded to the trial court for its reconsideration and proper imposition of sentence, which may include a sentence of death or sentences of life imprisonment with parole eligibility as provided by statute.
Assignment of Error XVII is sustained because the trial court imposed more than one sentence of actual incarceration for multiple gun specifications arising from the same transaction, contrary to R.C. 2929.71(B). Two of the three sentences imposed will be vacated.
The State's key witness was Marvin Washington, a juvenile who claimed to have helped Chinn rob and murder Jones. Chinn denied participating in the crime, claimed not to know Washington, and asserted an alibi defense.
Washington testified that on the evening of January 30, 1989, he rode a bus to downtown Dayton, arriving there at some time between 7:00 and 8:00 P.M. Soon after, Washington met a man whom he knew only as "Tony". Washington had first made "Tony's" acquaintance at a party one year prior, but had not seen him since.
Washington testified that he remained with "Tony" throughout the evening. The two eventually entered an adult book store on Ludlow Street between 10:00 and 11:00 P.M. Jack Couch, a clerk in the bookstore, testified that he ordered Washington from the store because he was underage. Couch was unable to identify the man who accompanied Washington.
Another witness, Gary Welborn, testified that he and the victim, "Jones, each drove in their cars to the parking lot behind the same adult bookstore that night, arriving at approximately 10:00 P.M. Welborn testified that he and Jones had parked their cars and were talking when they were approached, at about 11:00 P.M., by two men, whom they did not know. At trial, Welborn identified Washington as one of these men but was unable to identify the other. Welborn testified that the two men pulled guns from their pockets and demanded that he and Jones give them their wallets. After they did so, Washington entered Jones' car. As the other man attempted to enter Welborn's car, Welborn drove away.
Washington corroborated Welborn's story, and testified that the man whom Welborn was unable to identify was "Tony". According to Washington, after Welborn escaped "Tony" entered the rear passenger area of Jones' car and held a gun to Jones' head while Washington drove the car to a secluded point in Jefferson Township, fifteen minutes from downtown.
Stacy Ann Dyer, a resident of Jefferson Township, was in her driveway at 11:30 P.M. when she saw a car pull to the side of the road. Dyer testified that she saw two men get out of the car, but was unable to identify either. Dyer then heard a gunshot followed by a scream, and saw one of the two men run a few steps before falling to the ground. The other man then got back into the car and sped away. The injured man was Jones, who died of his gunshot wound.
Washington corroborated Dyer's story, and testified that it was "Tony" who removed Jones from the car and shot him. Washington testified that "Tony" told him that he shot Jones to prevent their being identified to the police and as punishment for having too little money.
At trial, Washington identified Appellant Chinn as "Tony", the killer of Jones. Approximately one month after the killing, and after his own arrest, Washington had been shown a line-up of men, which included Chinn. Washington first stated that the killer was not in the line-up. However, once out of the room Washington identified Chinn from the line-up as the killer. He told officers that he intentionally failed to identify Chinn out of fear.
The coroner testified that Jones was killed by a single shot to the left arm. The gun had been fired at point blank range, causing the bullet to pass completely through the arm, pierce the torso, and come to rest in Jones' heart.
Washington testified that after the shooting he and Tony drove to the house of his friend, Christopher Ward.
Ward testified that Washington arrived at his house at midnight with another man whom Ward did not know. Ward originally told police that he did not get a good look at the man with Washington, but later identified him as Appellant Chinn. Washington stated according to Ward that he and "Tony" had killed someone in Jefferson Township.
While Ward was under investigation for an unrelated homicide he informed the police of Washington's role in Jones' murder. After he was arrested, Washington made a confession and helped to prepare a composite drawing of "Tony", which was disseminated in the local news media.
Although Chinn maintains that he matches neither the description nor the composite drawing of "Tony", Shirley Cox was able to identify him to the police by these means as a man who entered the law office where she worked. She testified at trial to that identification, which led to Chinn's arrest.
Chinn denied any involvement in Jones' murder. Although he did not testify in his own behalf, Chinn presented an alibi defense.
Chinn presented evidence that he was enrolled at Cambridge Technical Institute and that he took a mid-term examination that was scheduled for from 5:30 P.M. and 7:15 P.M., the night of Jones' murder. School records indicated that Chinn did take this test but did not indicate at what time Chinn completed the examination.
Cassandra Taste, a classmate of Chinn, testified that she met Chinn after the examination at a bus stop in front of the Arcade Building in downtown Dayton. According to Taste, she and Chinn caught the same bus and sat together and talked on the ride home. Regional Transit Authority records indicate that a bus departed from the Arcade Building stop at 7:40 P.M. on that route.
Anna Lee, Chinn's mother, testified that Chinn arrived home at 9:30 P.M., where he remained until 11:15 P.M. when she went to bed. According to Lee, as she was going to sleep she could still hear Chinn talking to his brother, and as far as she knew he did not leave her house after that.
Chinn was tried by a jury and found guilty of aggravated murder, kidnapping, abduction, and three counts of aggravated robbery. Each count carried specifications for a prior felony conviction and use of a firearm, which the jury also found. Chinn was sentenced to terms of imprisonment of seven to ten years for abduction, consecutive to fourteen to twenty-five years for kidnapping, and fifteen to twenty-five years for each count of aggravated robbery to be served concurrently with each other but consecutive to the other counts. Additionally, Chinn received three three-year terms of actual incarceration on the firearm specifications. As to the aggravated murder, the jury recommended the death penalty. The recommendation was followed by the trial court, which imposed the death penalty.
VOIR DIRE
On August 7, 1989, Chinn moved the trial court to allow the parties to conduct an individual sequestered voir dire of jurors. Docket 38. This motion was denied on August 15, 1989. Docket 46.
In support of his contention that this decision denied him due process, Chinn directs our attention to the Kentucky Supreme Court's holding in Morris v Commonwealth (1989), 766 S.W 2d 58, 59. We note that the facts of this case are distinguished from Morris in that the Kentucky Supreme Court ,found that the unusual procedure was required solely because of the extensive pre-trial publicity in that case.
Regardless of the state of the law in Kentucky, it is well settled in Ohio that even a defendant who faces the possibility of capital punishment does not have a constitutional right to an individual sequestered voir dire. State v....
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