State v. Flonnory
| Decision Date | 19 July 1972 |
| Docket Number | No. 72-8,72-8 |
| Citation | 285 N.E.2d 726,60 O.O.2d 95,31 Ohio St.2d 124 |
| Parties | , 60 O.O.2d 95 The STATE of Ohio, Appellee, v. FLONNORY, Appellant. |
| Court | Ohio Supreme Court |
Syllabus by the Court
1. In the trial of a defendant on two counts of first degree murder arising out a single death, one count alleging premeditation and one count alleging a killing while perpetrating robbery, where the evidence shows that the accused was the gunman and had two accomplices, other evidence that he participated in two other armed robberies as gunman with the same two accomplices, one such incident being approximately two months earlier and another being two days after the crime charged, in which later robbery the accused killed another man, tends to show intent on the part of the accused to rob and intent to kill, and is admissible, with proper limiting instructions, for those purposes, irrespective of whether the other circumstances involved in those other acts comprise substantial probative evidence that the accused participated in the crime for which he is standing trial.
2. Where evidence has been admitted for a limited purpose, which the state claims shows that the defendant did certain 'other acts' which show the motive or intent of the accused or absence of mistake or accident on his part or the defendant's scheme, plan or system in doing the act alleged in the indictment, such evidence must not be considered by the jury as any proof whatsoever that the accused did any act alleged in the indictment.
3. A conviction may be based upon the uncorroborated testimony of an accomplice, except where otherwise specifically provided by statute.
4. An instruction to the jury in a criminal case that the testimony of an accomplice is to be 'acted upon with the utmost caution' is improper as constituting a comment upon the evidence.
Defendant was indicted for first degree murder in the shooting death in the early morning hours of March 4, 1967, of Willie Jackson, a Cleveland Transit System bus driver in his bus at the Depont Loop in Cleveland, Ohio.
The indictment contained two counts, one for premeditated murder and a second for murder in the perpetration of a robbery. The jury found defendant guilty on both counts, without a recommendation of mercy, and defendant was sentenced to death. The Court of Appeals affirmed.
The cause is before this court upon an appeal as a matter of right in a case in which the death penalty has been affirmed. Section 2(B)(2)(a)(ii), Article IV, Ohio Constitution.
Further facts relevant to a determination of this appeal are discussed in the opinion.
John T. Corrigan, Pros. Atty., and Harvey R. Monck, Cleveland, for appellee.
William R. Bluth, Columbus, for appellant.
The state of Ohio conceded in open court, and we find, that the death penalty in this cause must be vacated and the sentence reduced to life imprisonment because veniremen were improperly excused for cause when they expressed general opposition to capital punishment but did not unambiguously state that they would automatically vote against the death penalty irrespective of what the evidence might reveal. See Witherspoon v. Illinois (1968) 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776; State v. Watson (1971), 28 Ohio St.2d 15, 275 N.E.2d 153; State v. Anderson (1972) 30 Ohio St.2d 66, 282 N.E.2d 568. Moreover, the United States Supreme Court in Furman v. Georgia (decided June 29, 1972), -- U.S. --, 92 S.Ct. 2726, 33 L.Ed.2d 346, has held that the carrying out of the death penalty imposed at the discretion of the trier of the facts constitutes 'cruel and unusual punishment' in violation of the Eighth and Fourteenth Amendments to the United States Constitution.
That error was urged upon the Court of Appeals, but was not demonstrated by the record before that court. Later, this court ordered up additional portions of the voir dire examination which revealed fully the violation of the Witherspoon doctrine. This case was tried prior to Witherspoon.
We turn, therefore, to the other claimed errors.
The appellant claims that evidence of his participation in two other armed robberies was improperly received.
R.C. § 2945.59, reads:
'In any criminal case in which the defendant's motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant.' (Emphasis supplied.)
Much confusion about R.C. § 2945.59 might be avoided if it were observed that nowhere therein do the words 'like' or 'similar' appear. The statute permits the showing of 'other acts' when such other acts 'tend to show' certain things. If such other acts do in fact 'tend to show' any of those things they are admissible notwithstanding they may not be 'like' or 'similar' to the crime charged.
In this case, the chief prosecution witness was Brice Ogletree, who claimed to be an accomplice of the defendant Wayne Flonnory, and one William Brantley Bishop in the Jackson robbery-killing, the instant case, for which Flonnory was being separately tried upon a joint indictment charging all three. Ogletree testified that Flonnory was the actual triggerman.
During the course of the trial, under circumstances which will be hereinafter discussed, the jury heard testimony that the same three men had participated in two other armed robberies in which Flonnory was alleged to be the gunman-one on March 6, 1967, two days after the crime on trial in which a Mr. Adelman was killed in the robbery of Levit's Super Market on East 115 Street in Cleveland; the other on January 31, 1967, approximately two months earlier, which involved robbery of a liquor store at 105th and St. Clair in Cleveland.
The fact that defendant Flonnory had participated in the Adelman killing and claimed that Ogletree was the actual killer in that subsequent crime was first brought to the attention of the jury in the text of a defense question put to Ogletree upon cross-examination by Flonnory's defense counsel as part of the defense trial strategy to show the despicable character of the state's claimed-accomplice witness, Ogletree.
When thereafter, on redirect examination, the state brought out more details of the Adelman crime, Flonnory's counsel-both with decades of demonstrated competence in jury trials of criminal cases-pursued their strategy by making no objections. Nor did they assign error in the Court of Appeals to the 'Adelman killing' evidence.
Objection was made, however, to evidence of the earlier liquor store robbery. We find much more involved in this other alleged act of Flonnory than the mere showing of another crime on his part. In robbing the liquor store, as in robbing the bus driver, the same three men acted in concert. In both, Flonnory held the gun indicating a position of leadership. In both instances the plan and method of execution was the same-the same three men acting in concert, with Flonnory holding the gun.
Under the second count of the indictment for robbery-murder (R.C. § 2901.01), the state was required to show two different specific intents on the part of the defendant:
1. An intent to rob, and
2. An intent to kill.
Appellant's participation as gunman with the same two other men in each crime 'tended to show' both intent to rob and intent to kill, and the absence of mistake or accident, even assuming, hypothetically (for we do not find), that the scheme, plan or system was in all other respects entirely different.
In addition to the improper use of the words 'like' and 'similar' in jury instructions in criminal cases, the search for the truth is further impeded by lack of precision in limiting instructions dealing with 'other acts.'
If the jury find from other evidence, admitted without limitation, that the defendant has performed the act or acts involved in the indictment on trial they may then consider 'other acts' which they find the defendant has committed-for the limited purpose or purposes for which the...
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