State v. Green, 98-913.

CourtUnited States State Supreme Court of Ohio
Writing for the CourtPFEIFER, J.
Citation738 NE 2d 1208,90 Ohio St.3d 352
Docket NumberNo. 98-913.,98-913.
Decision Date20 December 2000

Julia R. Bates, Lucas County Prosecuting Attorney, John J. Weglian and Brenda J. Majdalani, Assistant Prosecuting Attorneys, for appellee.

Spiros P. Cocoves; David H. Bodiker, State Public Defender, and Pamela Prude-Smithers, Assistant Public Defender, for appellant.


In this appeal, Green advances twenty propositions of law. We reject each of the propositions relating to his convictions and therefore affirm his convictions.

We vacate the death penalty, however, and remand the cause to the trial court for further proceedings, primarily because the trial court failed to comply with Crim.R. 32(A)(1), which requires the trial court in every criminal case to personally address the defendant "and ask if he or she wishes to make a statement on his or her own behalf or present any information in mitigation of punishment." Additionally, we conclude that the trial court's sentencing opinion contains numerous deficiencies. Accordingly, the trial court must reconsider and revise that opinion prior to resentencing Green for the aggravated murder of Samar El-Okdi.

I Sufficiency of the Evidence

In his first proposition of law, Green challenges the sufficiency of the evidence to support prior calculation and design, which was charged in Count IV and in the death-penalty specifications in Counts IV, V, and VI.

We have held that "[t]he relevant inquiry [on appeal] is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. "[T]he weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts." State v. DeHass (1967), 10 Ohio St.2d 230, 39 O.O.2d 366, 227 N.E.2d 212, paragraph one of the syllabus.

To qualify for the death penalty under R.C. 2929.04(A)(7), the defendant must be the principal offender ("the actual killer," State v. Penix [1987], 32 Ohio St.3d 369, 371, 513 N.E.2d 744, 746) or, if not, the trier of fact must find that the murder was committed with prior calculation and design. Id. Here, the trial panel declared that having found prior calculation and design, it need not determine whether Green was the principal offender in the aggravated murder.

Because the trial panel did not find that Green was the principal offender, i.e., "the actual killer," the sufficiency of the evidence on prior calculation and design will determine whether the death penalty can be imposed in this case. See R.C. 2929.04(A)(7); State v. Taylor (1993), 66 Ohio St.3d 295, 306-308, 612 N.E.2d 316, 324-325; State v. Penix, supra.

In 1974, the term "prior calculation and design" replaced the term "deliberate and premeditated malice" in defining aggravated murder in Ohio. 134 Ohio Laws, Part II, 1866, 1900. No bright-line test exists that "emphatically distinguishes between the presence or absence of `prior calculation and design.'" State v. Taylor (1997), 78 Ohio St.3d 15, 20, 676 N.E.2d 82, 89. However, prior calculation and design is a more stringent element than premeditation. State v. Cotton (1978), 56 Ohio St.2d 8, 10 O.O.3d 4, 381 N.E.2d 190, paragraph one of the syllabus.

In this case, the evidence directly establishes how and where El-Okdi was killed, although facts relating to where she was kidnapped and robbed are missing. The evidence supports the trial court's finding that Green was guilty of complicity in her death and thus was one of her killers. When he was arrested, he was driving her car. His constant companion, Coley, possessed the gun that killed her. Green knew where her body could be found. Moreover, just twelve days earlier and a block from where El-Okdi lived, Green and Coley, acting together, had carjacked and robbed David Moore, driven him to a deserted area, shot him several times, and left him for dead.

Green argues that the state's proof of prior calculation and design rests solely on the supposition that the facts of El-Okdi's kidnapping, robbery, and murder were similar to what we know about the crimes against Moore. He admits that "other acts" evidence is admissible to establish identity or intent under Evid.R. 404(B). However, he argues that it is impermissible to use other-acts evidence to prove prior calculation and design in a later crime.

We reject Green's challenge to the sufficiency of the evidence. First, Evid.R. 404(B) recognizes that "other acts" evidence can be admitted to prove, inter alia, "intent, preparation, plan, knowledge, identity, or absence of mistake or accident." (Emphasis added.) Additionally, prior calculation and design can be found even when the plan to kill was quickly conceived and executed. See State v. Goodwin (1999), 84 Ohio St.3d 331, 343-345, 703 N.E.2d 1251, 1263 (store robbery in which one clerk was shot); State v. Taylor, 78 Ohio St.3d at 20-23, 676 N.E.2d at 89-91 (two- to three-minute encounter in bar between rivals for another's affections).

In any event, the known facts of El-Okdi's kidnapping, robbery, and murder by themselves, apart from the Moore crimes, support finding prior calculation and design. For example, El-Okdi was killed in an isolated area and was kidnapped for no apparent reason other than to kill her. El-Okdi was considerably smaller than her two armed killers, and she could not have posed any threat or put up any credible resistance. Nothing in the record suggests that she went to the location where she was killed voluntarily. In fact, El-Okdi had told a friend that she wanted to spend the evening at home alone. Also, El-Okdi was shot at close range, between the eyes, which suggests an execution-style slaying. Frusher testified that the Pontiac's license plate had a zero in it, which means that Green and Coley placed stolen plates on El-Okdi's Pontiac where they killed her. Finally, Green and Coley drove her Pontiac 6000 around town, which suggests a plan both to use her property and deprive her of any way to complain about its use. We reject Green's first proposition of law.

II Allocution Rights

In his second proposition of law, Green argues that he was denied due process and his rights under Ohio law because he was "not given an opportunity to speak before the death penalty [was] imposed." Ohio Crim.R. 32(A)(1) confers an absolute right of allocution:

"At the time of imposing sentence, the court shall * * * "Afford counsel an opportunity to speak on behalf of the defendant and address the defendant personally and ask if he or she wishes to make a statement in his or her own behalf or present any information in mitigation of punishment." See State v. Campbell (2000), 90 Ohio St.3d 320, 738 N.E.2d 1178, paragraph one of the syllabus; State v. Reynolds (1998), 80 Ohio St.3d 670, 684, 687 N.E.2d 1358, 1372.

The state argues that the court asked Green whether he wished to make a statement before imposing sentence. Around 9:25 p.m. on March 11, after hearing the penalty-phase evidence and deliberating for several hours, the panel announced that it was ready to proceed. After noting its previous findings, the court asked whether the defense had any objection to sentencing on the noncapital offenses as well as the capital offenses that evening. The defense had no objection. The following exchange then took place:

"The Court: Is there anything with regard to those offenses, Counsel or Mr. Green, prior to the Court passing sentence on both those counts as well as on Counts 7, 8 and 10?

"Mr. Cameron [defense counsel]: Anything we wish to say?

"The Court: Yes."

Counsel then commented about sentencing on the firearm specifications, and the court agreed. Counsel said nothing further, and Green said nothing. After Moore, Moore's wife, and Moore's brother made victim impact statements, the court imposed sentences for each offense to which Green pled guilty or was found guilty, including aggravated murder.

The trial court clearly erred in not explicitly asking Green, in an inquiry directed only to him, whether he had anything to say before he was sentenced. The United States Supreme Court has specifically cautioned federal judges under the comparable Federal Rules: "Trial judges before sentencing should * * * unambiguously address themselves to the defendant. * * * [J]udges should leave no room for doubt that the defendant has been issued a personal invitation to speak prior to sentencing." Green v. United States (1961), 365 U.S. 301, 305, 81 S.Ct. 653, 655, 5 L.Ed.2d 670, 674.

The trial court's reference to "both those counts" is ambiguous. The context suggests that the court may have solicited comment only on the noncapital offenses. Instead, the trial court should have specifically asked Green if he had anything to say about the capital counts as well as the other offenses. The record demonstrates a violation of Crim.R. 32 that was neither invited nor harmless.

Trial courts must painstakingly adhere to Crim.R. 32, guaranteeing the right of allocution. A Crim.R. 32 inquiry is much more than an empty ritual: it represents a defendant's last opportunity to plead his case or express remorse. "[I]ts legal provenance was the common-law right of allocution." Green, 365 U.S. at 304,81 S.Ct. at 655,5 L.Ed.2d at 673. See, also, United States v. Myers (C.A.5, 1998), 150 F.3d 459, 461-462; United States v. Riascos-Suarez (C.A.6, 1996), 73 F.3d 616, 627; Annotation (1964), 96 A.L.R.2d 1292, Section 4.

Green's right of allocution was violated, thereby undercutting the constitutional reliability of this death sentence. Accordingly, we sustain his second proposition of law and remand for resentencing. Campbell, 90...

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