State v. Davis, No. 86-1171

CourtOhio Supreme Court
Writing for the CourtLOCHER; MOYER; HOLMES; DOUGLAS; MOYER
Citation38 Ohio St.3d 361,528 N.E.2d 925
Decision Date14 September 1988
Docket NumberNo. 86-1171
PartiesThe STATE of Ohio, Appellee, v. DAVIS, Appellant.

Page 361

38 Ohio St.3d 361
528 N.E.2d 925
The STATE of Ohio, Appellee,
v.
DAVIS, Appellant.
No. 86-1171.
Supreme Court of Ohio.
Submitted March 2, 1988.
Decided Sept. 14, 1988.
Syllabus by the Court

[528 N.E.2d 926] When a reviewing court vacates the death sentence of a defendant imposed by a three-judge panel due to error occurring at the penalty phase, not otherwise covered by R.C. 2929.06, and the reviewing court does not find the evidence to be legally insufficient to justify imposition of the death sentence, such reviewing court may remand the action to that trial court for a resentencing hearing at which the state may seek whatever punishment is lawful, including, but not limited to, the death sentence.

At approximately 7:40 p.m. on December 12, 1983, officers of the Hamilton Police Department arrived at the scene of a shooting at American Legion Post 520 (hereinafter "the Legion") in Hamilton, Ohio. Lying on the pavement approximately six feet outside the front door of the Legion was the deceased victim, Suzette Butler. An autopsy performed the following day by the county coroner revealed that Butler had died as a result of multiple gunshot wounds to the left side of her head. One of the entrance wounds suggested that the muzzle of the murder weapon was within four to twenty inches of the victim's head at the time the weapon was fired.

On the day of the shooting, Butler met her friend, Mona Aldridge, at the Legion sometime between 5:00 p.m. and 6:30 p.m. Appellant, Von Clark "Red" Davis, arrived shortly thereafter, and eventually sat at a table with Butler and Aldridge. Apparently, appellant and Butler had cohabited for several months, but had recently separated. After a brief period of time, appellant and Butler arose from the table and walked out the front door. Prior to leaving, Butler told Aldridge that she would be "right back" and asked Aldridge to watch her jacket, cigarettes and drink. Several minutes later, a concerned Aldridge went to the front door of the Legion to look for Butler. Aldridge opened the door slightly and discovered appellant pointing a gun at Butler's head. Aldridge panicked and went back inside the bar. Momentarily, others followed her into the bar saying that someone had been shot.

The shooting was witnessed by Reginald Denmark and Cozette Massey. The couple [528 N.E.2d 927] had been on a walk observing Christmas lights. As they were walking, they saw a man and a woman talking in front of the Legion. The man and woman did not appear to be arguing. Two shots rang out. As the woman (later identified as Butler) fell, another shot was fired. Finally, " * * * after she was down, he bent down and

Page 362

shot her in the head * * *." Both Massey and Denmark ultimately identified appellant as the person who shot Butler.

It was later established that on the day of Butler's murder, appellant had sought out Mark "Poppa" Lovette to "do him a favor" in exchange for sixty dollars. Along with a third party, Wade Coleman, a.k.a. Hank Stokes, appellant drove Lovette to a pawn shop and gave him money to purchase a handgun. Lovette purchased a Raven P.25 semi-automatic handgun and gave it to appellant. Appellant again gave money to Lovette and had him purchase shells for the gun at a K Mart store. Lovette was then dropped off. Appellant subsequently discovered that the K Mart shells did not fit the weapon. Lovette was picked up again, the shells were returned to K Mart, and appellant drove Lovette to a local gun shop. Lovette purchased a box of PMC .25 automatic shells and gave them to appellant. Appellant then loaded the gun in the presence of Lovette and Coleman and placed the gun under the driver's seat of his car. 1 Late that afternoon, Lovette and Coleman were dropped off separately.

Following the murder, appellant was arrested and an indictment was filed against him on January 6, 1984. Count one of the indictment charged appellant with the aggravated murder of Butler in violation of R.C. 2903.01(A), 2 with the specification of having a firearm while committing the offense. See R.C. 2929.71. Count one also contained a specification of the aggravating circumstance that prior to this offense appellant had been convicted of an offense an essential element of which was the purposeful killing of, or attempt to kill, another. See R.C. 2929.04(A)(5). 3 In count two, it was alleged that appellant did knowingly acquire, have, carry or use a firearm having previously been convicted of felonies of violence, i.e., shooting with intent to wound on April 10, 1970, and murder in the second degree on April 20, 1971, in violation of R.C. 2923.13(A)(2). 4

Appellant waived his right to a jury trial. The trial began on May 9,

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1984, before a three-judge panel. 5 Appellant was convicted by the panel on both counts of the indictment and of both specifications to count one. Following the penalty phase of the trial, appellant was sentenced to death. [528 N.E.2d 928] The court of appeals affirmed both the conviction and the sentence.

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

John F. Holcomb, Pros. Atty., Daniel G. Eichel and Michael J. Sage, Hamilton, for appellee.

Holbrock & Jonson Law Firm and Timothy R. Evans, Hamilton, for appellant.

LOCHER, Justice.

This court is confronted today by issues concerning the conviction and death sentence of appellant. For the reasons set forth below, we affirm the judgment of the court of appeals with regard to appellant's conviction, but reverse the judgment of the court of appeals as to appellant's death sentence.

I

We begin our analysis by considering appellant's propositions of law which challenge the validity of his conviction for aggravated murder.

As noted above, appellant was charged with aggravated murder with the specification that prior to the instant offense, appellant was convicted of an offense an essential element of which was the purposeful killing of or attempt to kill another. Appellant was further charged in the second count with having weapons while under a disability. Appellant maintains that the trial court erred in refusing to sever the two charges contained in the indictment. It is also appellant's contention that the refusal to sever the two charges deprived him of his right to a jury trial because such a decision "forced" him to choose a hearing by a three-judge panel.

R.C. 2929.022(A) provides:

"If an indictment or count in an indictment charging a defendant with aggravated murder contains a specification of the aggravating circumstance of a prior conviction listed in division (A)(5) of section 2929.04 of the Revised Code, the defendant may elect to have the panel of three judges, if he waives trial by jury, or the trial judge, if he is tried by jury, determine the existence of that aggravating circumstance at the sentencing hearing held pursuant to divisions (C) and (D) of section 2929.03 of the Revised Code."

Prior to trial, appellant elected to have the trial judge determine the existence of the aggravating circumstance set forth in the specification pursuant to R.C. 2929.022(A). At the same time, appellant reiterated his earlier motion to sever the counts of the indictment. Following the trial court's decision to deny the motion to sever, appellant waived his right to a jury trial and elected to have a three-judge panel hear his case. Appellant claims that he was forced to waive the jury trial because, as a result of the denial of the motion to sever, a jury would be informed of his prior commission of a homicide throughout the trial. 6 Thus, appellant concluded that the jury's knowledge of such evidence

Page 364

would be extremely damaging and prejudicial.

Crim.R. 8(A) permits joinder of separate offenses only where the offenses charged "are of the same or similar character, or are based on the same act or transaction, or are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan, or are part of a course of criminal conduct." Clearly, the evidence of record in this action reveals that the crimes charged in the indictment arose from the same act or transaction.

"A defendant claiming error in the trial court's refusal to allow separate trials of multiple charges has the burden of affirmatively showing that his rights were prejudiced." State v. Torres (1981), 66 Ohio St.2d 340, 343, 20 O.O.3d 313, 315, 421 N.E.2d 1288, 1290; State v. Roberts (1980), 62 Ohio St.2d 170, 175, 16 O.O.3d 201, 204, 405 N.E.2d 247, 251-252. See, also, State v. Martin (1985), 19 Ohio St.3d 122, 127, 19 OBR 330, 334, 483 N.E.2d 1157, 1162, certiorari denied (1986), 474 U.S. 1073, 106 S.Ct. 837, 88 L.Ed.2d 808. Appellant essentially[528 N.E.2d 929] argues that the trial court's refusal to sever the charges abridged his right under R.C. 2929.022(A) to elect to have evidence of the prior purposeful killing considered solely at a sentencing hearing. Ohio's statutory framework for imposition of capital punishment directs that aggravating circumstances be determined at the guilt phase. Evidence pertaining to prior purposeful killings, not otherwise admissible, is admissible at the trial to prove the aggravating circumstance contained in R.C. 2929.04(A)(5). Nevertheless, when an R.C. 2929.022(A) election is made, evidence concerning a prior purposeful killing, not otherwise admissible, may not be introduced at the guilt phase to prove an aggravating circumstance. However, it is not the purpose of R.C. 2929.022(A) to provide a defendant with a blanket statutory right to preclude, at the guilt phase, the introduction of all evidence pertaining to prior purposeful killings which is otherwise admissible, i.e., the evidence necessary to prove the offense of having a weapon while under a disability.

Appellant's further contention that he was "forced" into waiving his right to a jury trial because of the possibility that the jury would not follow a curative instruction...

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214 practice notes
  • Davis v. Shoop, Case No. 2:16-cv-495
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • June 16, 2020
    ...and remanded the matter to the trial court for a new penalty phase. Davis v. Coyle, 475 F.3d 761 (6th Cir. 2007); State v. Davis, 38 Ohio St. 3d 361 (1988).2 Twice, three-judge panels resentenced Davis to death (Petition, ECF No. 6, PageID 8595, 8618, citing State Court Record, ECF No. 4-39......
  • Chinn v. Warden, Chillicothe Corr. Inst., Case No. 3:02-cv-512
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • May 29, 2020
    ...when a jury, not a three-judge panel, recommends a sentence of death." See Davis v. Coyle, 475 F.3d 761, 775 (6th Cir. 2007); Davis II, 38 Ohio St.3d 361, 372, 528 N.E.2d 925, 936 (1988). Here Chinn was in fact tried by a jury, but the alleged errors did not occur until after the jury had m......
  • Fearance v. State, No. 69024
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • December 7, 1988
    ...beyond recognition of the difference between 'aggravating specifications' and 'aggravating circumstances'...." State v. Davis, 38 Ohio St.3d 361, 528 N.E.2d 925 (1988) (Douglas, J., dissenting Page 521 Texas, however, does not use the weighing of aggravating circumstances against mitigating......
  • Wagers v. Warden, Lebanon Corr. Inst., Case No. 3:13-cv-031
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • February 1, 2013
    ...and included all of the situations in which a specification is required to be charged in the indictment. See State v. Davis (1988), 38 Ohio St. 3d 361, 374, 528 N.E.2d 925, citing State v. Penix (1987), 32 Ohio St.3d 369, 376, 513 N.E.2d 744 (Holmes, J., dissenting). Thus, under the doctrin......
  • Request a trial to view additional results
214 cases
  • Davis v. Shoop, Case No. 2:16-cv-495
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • June 16, 2020
    ...and remanded the matter to the trial court for a new penalty phase. Davis v. Coyle, 475 F.3d 761 (6th Cir. 2007); State v. Davis, 38 Ohio St. 3d 361 (1988).2 Twice, three-judge panels resentenced Davis to death (Petition, ECF No. 6, PageID 8595, 8618, citing State Court Record, ECF No. 4-39......
  • Chinn v. Warden, Chillicothe Corr. Inst., Case No. 3:02-cv-512
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • May 29, 2020
    ...when a jury, not a three-judge panel, recommends a sentence of death." See Davis v. Coyle, 475 F.3d 761, 775 (6th Cir. 2007); Davis II, 38 Ohio St.3d 361, 372, 528 N.E.2d 925, 936 (1988). Here Chinn was in fact tried by a jury, but the alleged errors did not occur until after the jury had m......
  • Fearance v. State, No. 69024
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • December 7, 1988
    ...beyond recognition of the difference between 'aggravating specifications' and 'aggravating circumstances'...." State v. Davis, 38 Ohio St.3d 361, 528 N.E.2d 925 (1988) (Douglas, J., dissenting Page 521 Texas, however, does not use the weighing of aggravating circumstances against mitigating......
  • Wagers v. Warden, Lebanon Corr. Inst., Case No. 3:13-cv-031
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • February 1, 2013
    ...and included all of the situations in which a specification is required to be charged in the indictment. See State v. Davis (1988), 38 Ohio St. 3d 361, 374, 528 N.E.2d 925, citing State v. Penix (1987), 32 Ohio St.3d 369, 376, 513 N.E.2d 744 (Holmes, J., dissenting). Thus, under the doctrin......
  • Request a trial to view additional results

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