State v. Green, 96-1307
| Decision Date | 18 February 1998 |
| Docket Number | No. 96-1307,96-1307 |
| Parties | The STATE of Ohio, Appellee, v. GREEN, Appellant. |
| Court | Ohio Supreme Court |
SYLLABUS BY THE COURT
When a defendant pleads guilty to aggravated murder in a capital case, a three-judge panel is required to examine witnesses and to hear any other evidence properly presented by the prosecution in order to make a Crim.R. 11 determination as to the guilt of the defendant.
On the afternoon of September 28, 1995, defendant-appellant Kenneth Green walked into the Cleveland Sixth District Police Station and told police officers that he had just killed two people. After being advised of his constitutional rights, Green restated that he had killed two people and identified the victims as his girlfriend, Debra Whitmore, and her friend, Nancy Allen.
Green also told the detectives where the killings took place. When asked, "How did you kill them?" Green answered, The detectives then asked him why he killed them, and he did not answer. He started to cry and stated that he did not want to say.
Debra Whitmore's body was found on a sofa bed in her apartment. She had two small stab wounds to her chest, both of which punctured her heart, causing her death. Nancy Allen's body was found in the next room sitting in a chair. Allen suffered skull fractures and brain injuries from several blows to the head with a blunt instrument. Multiple stab wounds punctured several vital organs, and she had multiple slash wounds across her neck. In addition, a long piece of terry cloth had been looped around her neck.
A grand jury indicted Green on two counts of aggravated murder alleging prior calculation and design, a violation of R.C. 2903.01(A). Both counts included two death penalty specifications under R.C. 2929.04(A)(5): a mass-murder specification for the murder of more than one person as part of a course of conduct and a repeat-murder specification based upon a prior murder conviction for which Green had served sixteen years in Lucasville prison.
Green voluntarily signed a jury waiver and came before a three-judge panel in the Cuyahoga County Court of Common Pleas. The prosecutor outlined the charges and started to recite a statement of facts "in order to form a factual basis" for Green's expected guilty plea. Green's counsel objected, and the objection was noted by the court. Following this statement of facts, the prosecutor proffered as evidence the coroner's report, coroner's photographs, crime scene photographs, and a journal entry stating that the defendant had pled guilty to murder in 1974.
Defense counsel objected to the introduction of the proffered evidence except for the journal entry, stating: "[I]nasmuch as we are tendering a plea of guilty today to this three judge panel, we don't think that the prosecution needs to introduce any aggravating circumstances * * *." The court deferred ruling on the admission of the evidence until the mitigation hearing. The prosecution offered no response to the objection and made no further attempts to proffer evidence. No witnesses were called and no testimony was taken.
Before accepting Green's guilty pleas on both counts, the court questioned Green about his plea, and Green acknowledged repeatedly that he understood his rights and everything the prosecutor and his counsel had told him. He stated that he understood that he was presumed innocent and that the prosecutor had to prove his guilt beyond a reasonable doubt. He further denied that any threats or promises had been made to induce his guilty plea.
The court asked him whether he "did purposely and with prior calculation and design" cause the death of the victims. The court did not explain the legal significance of "prior calculation and design" nor did it attempt to define it. Green then pled guilty to both killings. He further pled guilty to both death penalty specifications and acknowledged that he fully understood the penalties, including the death penalty, which could be imposed on each count. The court found that the pleas of guilty were made "voluntarily, knowingly, intelligently in compliance with Rule 11" and accepted them on that basis. Upon acceptance of the plea, Green asked to make a statement to the court, saying,
Although the court accepted the plea, there was no indication on the record that the judges examined witnesses, made a unanimous determination that Green was guilty of aggravated murder, or considered the possibility that he may be guilty of a lesser offense. The court found that Green had pled guilty to two counts of aggravated murder (R.C. 2903.01) with specifications; however, it never filed a journal entry actually finding the defendant guilty of aggravated murder. Further, the court never made a finding that the killings were done with prior calculation and design, the essential element that separates aggravated murder from murder and renders the defendant eligible for the death penalty.
In the journal entry accepting the guilty plea, no reference was made to the second death penalty specification, for repeat murder. 1 1 Nonetheless, the court accepted evidence at the mitigation hearing on this specification.
At the mitigation hearing, the state presented evidence, including photographs, the coroner's reports, and a journal entry on the 1974 murder that had been proffered at the plea hearing. Further, the state introduced the testimony of two police officers, Detective Moore and Detective Matuszny, who investigated the killings and submitted reports from the state's trace evidence department. Although evidence of Green's 1974 conviction was accepted by the court over the objection of the defense attorney, the journal entry imposing punishment did not refer to the second specification for repeat murder. 2
The court sentenced Green to death on each count.
The cause is now before this court upon an appeal as of right.
Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, and Robert Glickman, Assistant Prosecuting Attorney, for appellee.
David L. Doughten, Cleveland, James A. Draper, Cuyahoga County Public Defender, and Donald Green, Richmond Heights, for appellant.
Appellant Kenneth Green appeals from the judgment of the Cuyahoga County Court of Common Pleas whereby a three-judge panel sentenced him to death on each of two counts of aggravated murder with death penalty specifications.
Appellant raises seven propositions of law in support of this appeal. We have reviewed these propositions and independently assessed the evidence presented throughout both the guilt and penalty phases of the trial. Based upon our review, we reverse Green's conviction and remand the case for retrial.
In Proposition of Law No. 1, Green contends that his conviction should be reversed because the state's failure to adduce evidence of prior calculation and design violates the United States Constitution, the Ohio Constitution, Crim.R. 11(C)(3), and R.C. 2945.06. We agree that the trial court did not meet the requirements of Crim.R. 11(C)(3) or R.C. 2945.06 and we therefore need not address the constitutional issues raised.
Trial courts must follow more stringent procedures in the acceptance of a guilty plea for aggravated murder than they do for other felony charges. The procedures set forth by the Ohio General Assembly and this court are found in R.C. 2945.06 and Crim.R. 11(C)(3). Crim.R. 11(C)(3) allows the trial court, at its discretion, to dismiss death-penalty specifications following a plea to aggravated murder. If the court chooses not to dismiss the specifications, a three-judge panel shall "(a) determine whether the offense was aggravated murder or a lesser offense; and (b) if the offense is determined to have been a lesser offense, impose sentence accordingly; or (c) if the offense is determined to have been aggravated murder, proceed as provided by law * * *." (Emphasis added.)
The following section, Crim.R. 11(C)(4), clearly implies that the court must take testimony upon a plea of guilty to aggravated murder in order to make the required determination under Crim.R. 11(C)(3):
"(4) With respect to all other cases the court need not take testimony upon a plea of guilty or no contest." (Emphasis added.)
R.C. 2945.06 also specifies procedural requirements which must be followed by any three-judge panel assembled upon a plea of...
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