State v. Derrick Jamison
| Decision Date | 17 February 1988 |
| Docket Number | C-850753,88-LW-0538 |
| Parties | STATE of Ohio, Plaintiff-Appellee, v. Derrick JAMISON, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Criminal Appeal from Court of Common Pleas.
Arthur M. Ney, Jr., Prosecuting Attorney, Leonard Kirschner, and William E. Breyer, Cincinnati, for plaintiff-appellee.
William Flax, and Albert J. Rodenberg, Jr., Cincinnati, for defendant-appellant.
Early in the afternoon of August 1, 1984, a robbery took place at the Central Bar in downtown Cincinnati, and the bartender then on duty, one Gary Mitchell, was left severely beaten with injuries that resulted in his death after he was taken to a local hospital for treatment. Although there were apparently no witnesses on the premises at the time of the incident, the efforts of police investigators to assemble evidence from other sources led, some six months later, to the indictment of the defendant-appellant, Derrick Jamison and another individual, one Charles Howell. The indictment as it pertained to Jamison, contained two counts with accompanying specifications: the first count charged Jamison with the aggravated murder of Gary Mitchell, specifying that Jamison was the principal offender, and that the homicide occurred while he was committing the offense of aggravated robbery; and the second count set forth a charge of aggravated robbery with the specifications that Jamison possessed a firearm during the commission of the offense, and that he had a prior robbery conviction. Howell was named along with Jamison in the aggravated-robbery count, but he was not separately charged in the indictment for the murder of Mitchell.
Jamison was tried separately before a jury in the court of common pleas and found guilty as he stood charged, except with respect to the firearm specification added to the count of aggravated robbery. In the sentencing phase of the proceedings, the judge accepted, for the reasons set forth in a separately filed opinion under R.C. 2929.03(F), the jury's recommendation of capital punishment and on October 19, 1985, imposed the death sentence for the aggravated-murder count. A separate term of incarceration involving a minimum of fifteen years of actual confinement was ordered as a result of the jury's finding of guilt on the charge of aggravated robbery.
In this appeal, Jamison now seeks the reversal of both convictions, giving us five assignments of error for review. The issues raised by the assignments include: (1) whether, in the guilt phase of the proceedings at trial, the jury was improperly permitted to consider evidence of other crimes attributed to Jamison; (2) whether Jamison should have been afforded the opportunity to present an alibi defense; (3) whether the judge should have granted Jamison's pretrial motion for a polygraph examination to assist in the preparation of his defense; (4) whether there was a lawful basis for the disparity in the sentences given to Jamison and his co-defendant Howell; and (5) whether the jury's verdicts of guilt were against the manifest weight of the evidence and contrary to law.
Because this is a capital prosecution that has resulted in the imposition of the death penalty, there are, under Ohio law, three aspects to our review on appeal. In addition to addressing the merits of Jamison's five assignments of error, we must independently determine whether the aggravating circumstance as found by the jury at trial outweighs the factors presented by Jamison in mitigation of his punishment, and then decide whether his sentence of death is appropriate after considering whether it is excessive or disproportionate to the penalties imposed in similar cases.
Having reviewed the record certified to us by the court of common pleas and having considered the appropriate legal authorities, we are persuaded in the case sub judice that there is no merit in Jamison's five assignments of error, that the aggravating circumstance of Gary Mitchell's homicide outweighs the mitigating factors beyond a reasonable doubt, and that the sentence of death imposed in the court below is the appropriate penalty. We must, therefore, affirm the judgment of conviction entered in the court below, leaving the details of our analysis to the separate sections that follow.
To provide a factual backdrop for a better understanding of the various aspects of our review, we begin with a summary of the evidence adduced in the guilt phase of the proceedings below. According to the testimony, the bar where the offenses occurred had been owned by the Mitchell family for some forty years. On the day in question, the bartender on duty was twenty-four-year-old Gary Mitchell, a frail young man who suffered from cystic fibrosis. At approximately 11:00 a.m., Jeanette Singleton entered the bar to cash a check for a disabled friend. Gary Mitchell told her to come back early that afternoon to pick up the money, and before she returned, she saw him emptying trash outside the bar. A short time later, however, when she reentered the premises to buy cigarettes, Mitchell was not immediately visible.
Singleton began looking for the bartender with the help of another customer, one Carl Komala, who had just arrived at the bar during his lunch break to buy a soft drink. The two soon discovered Mitchell lying face down on the floor behind the bar counter, with his skull severely battered. They also observed that the cash register was open and that there was no money in the drawer. The police were summoned immediately, and Mitchell was taken to University Hospital in Cincinnati, where he died several days later; according to the deputy coroner's report, death resulted from a head injury inflicted by a blunt object that produced massive hemorrhaging and swelling in Mitchell's brain.
Investigation of the crime scene led to the recovery of a gym-shoe print from the surface of the bar counter; that print was later identified at trial as being consistent with one made by Jamison's shoe. Although the police were unable to locate any eyewitnesses who may have been on the premises at the time Mitchell was attacked, the first officer on the scene did talk with an elderly black man in the neighborhood, who stated that he saw two black males in their twenties running away from the Central Bar not long after the offenses must have taken place.
The only direct evidence at trial that placed Jamison in the bar came from his alleged accomplice, Charles Howell. Howell testified that he and Jamison were playing basketball on the morning of August 1, 1984, when Jamison reportedly said, "[L]et's rob [the Central Bar]." T.p. 1252. According to his version of the ensuing events, Howell went into a bathroom at the rear of the premises after the two arrived at the bar to carry out Jamison's plan; when he emerged moments later, he saw Jamison standing at the cash register behind the bar counter, and the bartender lying nearby on the floor. Jamison instructed Howell to post himself as a lookout near the front door, and Howell described what followed in these simple terms:
Q.[by the prosecutor] You went to the door?
A.Yes.
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Q.What did you hear?
A.I heard the man [Gary Mitchell] saying take the money, please don't hurt me, just take the money.
Q.How many times did he say that?
A.Three or more times.
Q.What if anything did you see [Jamison] do?
A.Stomping the bartender.
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Q.Could you hear the man when [Jamison] was stomping him?
A.Yes.
Q.What was he saying?
A.Please don't hurt me, just take the money.
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Q.How many times did you see [Jamison] stomp?
A.Four or more times.
Q.Did you hear anything?
A.I heard the stomp.
By Howell's account, the incident drew to a close when an unidentified woman unexpectedly appeared at the front door of the bar. Her arrival caused Howell to panic, and he and Jamison then ran out of the bar and fled on foot to a nearby housing project, where they divided the money Jamison had taken from the cash register.
This brings us to Jamison's five assignments of error, the first of which is:
The trial court erred repeatedly in allowing references to defendant-appellant's commission of seven other robberies, not connected with the case at bar, at every stage of the proceedings, and in allowing evidence of such unconnected acts to go to the jury over objections by the defense.
The thrust of Jamison's argument about the disputed evidence is that it had probative value only to the extent that it prejudicially gave rise to an inference long prohibited under Ohio law: that he had a propensity or inclination to commit crimes and, therefore, that he did, in fact, commit the crimes charged in the case sub judice. State v. Mann (1985), 19 Ohio St.3d 34, 482 N.E.2d 592. In addition to this, Jamison asserts that the error in admitting the prosecution's evidence of the other crimes was compounded when the trial judge cut short his own efforts to adduce further other-crimes evidence to show that the charged offenses could just as well have been attributed to some other person.
The general rule of exclusion upon which Jamison's initial argument depends is recognized in Ohio both in the criminal code and in the rules of evidence. R.C. 2945.59; ®1¯ Evid.R 404(B).®2¯ There are, however, specifically enumerated exceptions to the general rule under which other-crimes evidence may legitimately play a part in the trial of a criminal case. Id. To invoke one of the exceptions on a case-by-case basis, the trial judge must engage in a two-part inquiry: he must determine (1) whether one or more of the...
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