State v. Franklin, 90-1914

CourtUnited States State Supreme Court of Ohio
Citation62 Ohio St.3d 118,580 N.E.2d 1
Docket NumberNo. 90-1914,90-1914
PartiesThe STATE of Ohio, Appellee, v. FRANKLIN, Appellant.
Decision Date20 November 1991
Winston Burglary

About 4:00 p.m. on July 21, 1988, Rosha Winston returned to her one-room apartment on Eden Avenue in Cincinnati to find that her TV set had been taken. A framed picture and some decorative glass dishes had been moved from the top of the TV and placed on the kitchen table. A window screen at the rear of the apartment had been partly torn out and the windowsill had mud on it.

The window that had a torn screen was about six feet off the ground from the outside. Police noticed a circular imprint made in the muddy ground under the window. The circle was thought to have been made by a metal garbage can, on which the burglar stood to reach the window. Several metal cans sat on concrete across the driveway separating Winston's apartment from the building next door. One of the cans had mud around the top. A large barking dog, chained to a nearby handrail, prevented police from approaching the cans.

Winston told police she suspected George Franklin, a neighbor, of the burglary. Franklin lived in an apartment next door with his grandfather. When questioned by police on the same day as the burglary, Franklin used the name of George Fichtel. Franklin appeared nervous, and wanted to know what evidence the police had. He admitted that the dog belonged to his grandfather, and controlled it long enough for the officer to inspect the garbage cans.

Police found Franklin's fingerprint on the picture that had been on top of the stolen TV. By the time police identified Franklin as the burglar, he had disappeared.

Strauss Burglary-Murder

On or about July 23, 1988, Gerald R. Strauss and his fiancee Karen Strain moved into a townhouse on Corry Street in Cincinnati. On Saturday, August 6, 1988, Strauss and Strain picked up Richard Thompson, a friend of Strauss, at the airport. The next morning, Strain left on a business trip. Thompson and Strauss spent the day in various activities, including a cookout on the apartment patio. Strauss dropped Thompson off in downtown Cincinnati at around 10:00 that evening.

At about 10:30 p.m. a neighbor, Leonard Bass, saw Strauss cleaning the patio and apartment. Shortly after 11:00 Bass saw Strauss go upstairs, and saw lights turned off in the apartment. Another neighbor, Catherine Schaffner, while out walking her dog between 11:00 and 11:30, heard a "horrible," "very loud, very forceful" scream that lasted two or three seconds. The sound seemed to come from the direction of Strauss's building. A few minutes later, after Schaffner got home, her dog started barking which usually indicated a stranger passing close to the house.

The next morning Mitch Walker, a co-worker at Proctor & Gamble, tried to call Strauss when he did not show up for work. After getting busy signals, Walker asked the operator to break in. The operator determined that the phone was off the hook. Walker then drove to Strauss's townhouse, and found the front door ajar. He asked a police officer to investigate. The officer entered the townhouse and found Strauss's body in an upstairs bedroom.

The coroner arrived that morning and concluded that Strauss had been dead six to eighteen hours. Upon laboratory examination, the body revealed bruises on the right hand; lacerations, broken bones and a crushed eyeball from two blows to the face; and lacerations and broken bones from a large number of blows to the back of the head. The cause of death was bone fragments driven into the brain. The wounds were described by the coroner as consistent with having been caused by a claw hammer.

According to both Thompson and Strain, Strauss had left a Marion brand claw hammer in the upstairs guest bedroom. The hammer was not found in the house. Other items were missing from the house, including Strauss's money clip with several twenties, his credit cards, his watch, a VCR, and a briefcase with personal papers. In a wooded area a few blocks away, police found the briefcase and personal papers, credit cards, and a placemat that matched others in the townhouse. Assisted by a tracking dog, the police found a bloodstained Marion brand claw hammer in the woods. The VCR, watch, money clip and money were never recovered, despite the offer of a reward.

A screen had been torn out in a patio window of the townhouse. Karen Strain testified that she and Strauss kept an empty champagne bottle as a souvenir on the inside sill of that window. When police found the body, the bottle had been carried upstairs and left in the guest bedroom.

The police noticed a similarity to the Winston burglary. Both crimes occurred in the same neighborhood, within seventeen days of each other. A TV was taken from Winston, a VCR from Strauss, and both entries had been obtained by tearing or cutting a screen from a rear window. A latent fingerprint lifted from the champagne bottle in the Strauss townhouse matched Franklin's known prints.

Police traced Franklin to the apartment of a Glenn Davis. When officers arrived on August 18, Davis answered the door and said he lived there with his cousin, Gerald Evans. The police recognized "Gerald Evans" as Franklin and arrested him.

Michael Turnbolt, who spent the evening of the Strauss murder, August 7, with Franklin, testified that both had been using drugs. Franklin left at about 10:30 p.m., at which time he apparently had no money. Franklin returned and woke Turnbolt at about 2:30 a.m. Turnbolt described this as unusual. Franklin had changed his shirt, and had $100 to $150, which he later used to purchase a gram of cocaine.

Following Franklin's arrest, a fellow inmate, Larry Weaver, heard Franklin say (referring to a witness against another prisoner), "If it was me I'd do him. I already got one and one more wouldn't hurt." Franklin also said, "Whatever it was that they [the police] were looking for they wasn't going to get it back."

In his defense, Franklin presented witnesses who described him as well mannered, not violent. The witnesses said that Franklin often got money from family members. Franklin identified himself to the police as Gerald Evans at the request of Glenn Davis, according to Davis. Davis also testified that Franklin wore the same clothes on August 9 as he did on August 4, and did not have access to his other clothes between those dates.

On December 7, 1988, a jury convicted Franklin of the aggravated murder of Strauss, with a death penalty specification for committing the offense in the course of an aggravated burglary, the aggravated burglary of Strauss's apartment, and the aggravated burglary of Winston's apartment.

A hearing on imposition of sentence was held on December 12, 1988. Franklin presented the testimony of family members as to his history, character and background. Franklin's younger brother, Kevin Kelley, testified that he got along well with Franklin and did not think Franklin should get the death penalty. William Franklin, the defendant's eighty-four-year-old grandfather, who had taken care of Franklin in 1984 and 1985, said that he had been a good, obedient boy. Franklin's mother, Julia Franklin, testified that as a child he was good, little trouble to the family, and friendly with everyone. In addition, he attended church as a child, and had health problems. Defendant missed school frequently and was set back in school a year, partly because of medical problems including hypertension. Franklin left school when he was eighteen and worked at a variety of jobs. His mother testified that he was not violent, and could never have killed anyone. However, she had filed four complaints against him in juvenile court for running away, refusing to attend school, and disregarding rules.

Attorney Stuart Richard Arnold was allowed to testify, despite the fact that he had been present in the courtroom throughout the first phase of the trial after the trial court had ordered separation of witnesses. He testified that he had known Franklin quite well for five and a half years, and had developed an informal big brother/little brother relationship with him. He took Franklin to baseball and football games, and hired him to work around the house. Arnold found Franklin to be quiet and even-tempered, with good control over himself. He explained Franklin's 1985 misdemeanor conviction for assaulting a teacher by saying that a scuffle occurred when the teacher grabbed a Walkman radio off Franklin's head from behind. Franklin's 1987 charge for resisting arrest occurred when police broke up a crap game and Franklin ran away with the others. After encouragement from Arnold, Franklin successfully finished a Job Corps program in Cleveland. He then worked in a nursing home. Arnold believes Franklin would benefit from the rehabilitation offered by the corrections system.

In an unsworn statement, Franklin denied killing Strauss, and said that witnesses made fabrications against him in the trial. He was sorry that the crimes had occurred, but he had nothing to do with them. He said he did not want to die, but was not afraid, because he believes in God.

The jury recommended the death penalty, and the trial judge sentenced Franklin to death along with two consecutive ten- to twenty-five-year terms of imprisonment for the aggravated burglaries. The court of appeals affirmed the convictions, the terms of imprisonment, and the death sentence.

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

Arthur M. Ney, Jr., Pros. Atty., and William E. Breyer, Cincinnati, for appellee.

Roxann H. Dieffenbach and Candace C. Greenham, Cincinnati, for appellant.

HERBERT R. BROWN, Justice.

R.C. 2929.05(A) requires us to undertake a three-part analysis in capital cases. First, we must review the judgment and consider Franklin's claims of error. Second, we must independently weigh the evidence of aggravating and mitigating factors....

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